When an employer timely files a petition for an employee in H-1B, H-1B1, L-1, O-1, E-3 or TN status to extend his/her employment in the same status, the employee may continue to work for the same employer for an additional 240 days beyond the expiration of their current status, while the petition is pending adjudication (it does not need to be approved) or until USCIS adjudicates the case, whichever is sooner.
To qualify for the 240-day extension, the extension must be timely filed (i.e. received by USCIS prior to the expiration of the employee’s current authorized stay based on the most recent I-94 record.
How does the 240-day rule apply in practice?
Let’s take this scenario. If the H-1B status expires on August 30, 2022, and the employer timely files for a 3-year extension on July 5, 2022, the 240-day rule would allow the employee to continue to work for 240 days (or March 2, 2023 or until USCIS adjudicates the petition whichever occurs first).
In practice, employers should consider upgrading petitions to premium processing once these cases have been pending for about 200 days to avoid a situation where an employee must stop work, especially given the increased delays in adjudicating these petitions.
Form I-9 Updates
While the petition is pending, the employer should verify the work authorization by writing in Section 2 of the Form I-9, under Additional Information “240-Day Ext.” and the date the petition was submitted to USCIS. For example, write “240-Day-Ext” + date (MM/DD/YYYY) when the petition was filed.
The employer should also retain a copy of the USCIS receipt notice with the employee’s existing Form I-9.
Once the employer receives the USCIS Notice of Approval or by the end of the 240-day extension period, the employer must reverify the employee’s employment authorization and update the Form I-9.