H-1B Processing delays and 240 Day Rule

Practice Areas

H-1B extension processing delays at the service centers has been a matter of growing concern with the U.S. employers. American Immigration Lawyers Association (AILA) raised the issue of lengthy processing times with USCIS, specifically noting that the processing of H-1B extensions at the California Service Center and Vermont Service Center continues to be extraordinarily slow. When pressed on the reasons reported a marked increase in H-1B filings for the backlog, USCIS, including Simeo filings (H-1B Amendments), and noted that there has been an increase in premium processing as well.

Under the 240 Day Rule, the beneficiary of a timely filed H-1B extension petition is automatically granted work authorization for 240 days beyond the expiration of Form I-94. From 241st day the beneficiary ceases to have employment authorization and has to stop working.

Beneficiary’s lawful nonimmigrant status ends when Form I-94 expires. However, the beneficiary does not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, if an extension of stay was filed prior to the expiration of beneficiary’s’ I-94 and the said petition is pending with USCIS. Additionally, depending on the classification, the employment for a maximum period of 240 days while the extension petition is pending, if beneficiary may be permitted to continue previously authorized

  • USCIS receives the extension petition before beneficiary’s Form I-94 expires, and
  • Beneficiary has not violated the terms of nonimmigrant status.

The beneficiary may be required to stop working immediately when the first of the following events occurs:

  • 240 days elapse from the date of beneficiary’s I-94 expiration; or
  • USCIS has made a final decision denying the extension petition.

If the petition for an extension of stay is approved, the approval will relate back to the date the Form I-94 expired, and the status while petition was pending, will then be considered to have been lawful. If the petition is denied, beneficiary may be required to cease employment and depart the United States immediately. Additionally, any nonimmigrant visa in beneficiary’s passport granted in connection with the denied classification becomes void thereby requiring the beneficiary to apply for a new visa at a U.S. consulate in his/her home country.

In the past, processing time for H-1B petitions ranged between 2 and 4 months, which is no longer a norm. With USCIS taking considerably longer to adjudicate petitions, employers are concerned about continued employment authorization for their employees on H status.

Employers are advised to upgrade the pending H-1B petition to premium processing, if 180 days have elapsed from the date of beneficiary’s I-94 expiration. This will allow sufficient time to receive a decision on the case, even in case of an RFE being issued on the petition, and prevent the beneficiary from losing employment authorization. Another good practice to follow would be to initiate the extension process 6 months in advance.

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