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Sowmya Halady

H1 Extension Pending: Post 240 Days

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My H1 Petition Expired on March-01 2018. My extension was received by California on February 06, I got an RFE on April 18th for which the response was received on July 22. My 240 Days will run out on October 27th. Is it legal for me to stay in US after my 240 days have passed if I do not work ? If Yes, what is the Identification proof for legally staying in this country at this point as Driving License is not issued post the 240 Days in my state?

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If the H-1B petition is simply an H-1B extension (not an H-1B transfer), the H-1B employee is authorized to work for up to 240 days beyond the expiration of their current period of stay (i.e. beyond the expiration listed on their most recent I-94 card). That means that once the 240 day period has passed, the H-1B employee is no longer authorized to work (see 8 CFR 274a.12(b)(20)). However, the H-1B employee is permitted to remain in the US while the timely filed H-1B extension petition is pending, even beyond the 240 day mark

If an H-1B employee has an H-1B transfer petition pending, there is room to argue that per the AC21 statute, the employee may keep working even beyond the 240 day mark. However, because there is not clear guidance on this (at least as of right now), the H-1B employer and employee should seek counsel from an experienced immigration attorney if they are coming up on the 240 day mark.

One of the reasons USCIS has suspended premium processing is "Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark" --https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-fiscal-year-2019-h-1b-cap-petitions

There is a possibility that if your attorney reaches out to USCIS they would treat your case as premium and adjudicate your case however if you go through https://www.uscis.gov/forms/expedite-criteria

Expedite Criteria

USCIS reviews all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met.

USCIS may expedite a petition or application if it meets one or more of the following criteria:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
  • USCIS error; or
  • Compelling interest of USCIS.

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If you google 8 CFR 274a.12(b)(20)

This is what it states "(20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), (b)(19), (b)(23) and (b)(25) of this section whose status has expired but on whose behalf an application for an extension of stay was timely filed pursuant to § 214.2 or § 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision;"

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