The Waiting Game: Navigating the 240 Day Rule, H-1B Processing Delays, and Premium Processing

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8 CFR 274a.12(b)(20) outlines what practitioners, petitioners, and beneficiaries recognize as the “240 day rule” for individuals holding one of several select nonimmigrant statuses that provide work authorization (such as an H-1B). This provision allows for an individual whose status has expired, to continue working for their current employer, pursuant to a timely filed extension of that stats (i.e., before the expiration of the individual’s prior status). The rule grants the qualifying individual up to 240 days of work authorization from the expiration date on the individual’s I-94, while the extension is pending. During this period, the individual is technically not in a specific status, but rather, in a period of “authorized stay.” However, the individual may continue to work during this 240 day work authorization period as if he or she were in their prior status unless the extension application is denied or the 240 day period elapses, whichever comes first.

Up until recently, H-1B employers and employees utilized this 240 day provision without significant concern, recognizing that USCIS was adjudicating the vast majority of H-1B cases (including subsequent reviews of RFE responses) well in advance of 240 days. Over the past year or so, though, adjudication times for H-1B Extension Applications filed under Regular Processing have creeped further and further back. Due, in significant part, to the Simeio decision and the resulting increase of H-1B Amendment filings, processing times have ballooned from 3 months to 6 months to 8 months and beyond. This doesn’t even include cases, where the employer and USCIS require additional time need to prepare, submit, and process RFE responses.

Currently, the Vermont Service Center is processing H-1B Extension Applications filed before August 31, 2015, a nearly 9 month wait. The California Service Center isn’t fairing much better. The CSC is processing H-1B Extension Applications filed before October 16, 2015, more than a 7 month wait. Such waits have begun to seriously impact the work authorization for individuals, where their employer filed an H-1B Extension close to the expiration date of their status or have had to deal with an unexpected RFE.

On April 21, 2016, USCIS announced a policy change that now allows Petitioners to place “outside of normal processing time” inquiries for H-1B Extensions and Transfers that have been pending for 210 days or more. While this announcement could potentially result in more expedient adjudications, with up to 30 days needed to process initial inquires, this option will not likely be strong enough to significantly impact employers whose employees are approaching the end of their 240 days of work authorization, especially in cases where an RFE may be issued.

With no telling how the influx of this year’s H-1B CAP filings will impact processing times, and no quick fix on the horizon for the current situation, employers and practitioners alike should take prudent measures to avoid a work authorization issue in advance. Several such measures include the following:

  • Determine if Premium Processing is the best option for a case and identify any conditions that may necessitate a conversion.
    • Despite the cost of Premium Processing, with current Regular Processing taking almost 10 months, it is the most surefire way to avoid any 240 day work authorization issues.
    • Beneficiaries with upcoming travel plans or driver’s license expirations in the next several months may require an H-1B Approval to properly reenter the country or properly extend their licenses, respectively. Recognizing these issues beforehand will help determine if a Premium Processing Conversion is appropriate, if not filing the Extension Application in Premium Processing outright.

  • File extensions as early as possible:
    • One can prepare and submit straight Extension of Stay Applications (e.g. without any Request for Amendment) up to 6 months before the expiration date of a beneficiary’s current H-1B status. As such, filing as early as possible will give the employer and beneficiary a significant “buffer” of valid H-1B work authorization until the current H-1B status/I-94 expires. From that point on, the beneficiary can continue working for the employer under the 240 day work authorization provisions for a full 240 days. This would be an attractive option to employers and beneficiaries who do not have a specific need for Premium Processing and do not wish to convert a pending application at a later time.

  • Set calendar reminders periodically:
    • When filing an H-1B Extension, mark calendar reminders for the beneficiary’s expiration date as well as periodic work authorization milestones beginning 3 months from that date onwards (e.g., 90 days, 120 days, 150 days, etc.). This will allow one to easily keep track of a beneficiary’s work authorization and determine, if appropriate, when to file a conversion to Premium Processing. For instance, if an RFE is expected for a case, one should calendar accordingly to allow sufficient time to convert the application to Premium Processing, submit an RFE Response, and have USCIS adjudicate the application before the 240 day period expires.

The fact remains that due to USCIS processing slowdowns in both Vermont and California, Premium Processing may simply be unavoidable for certain employers and beneficiaries for the time being to avoid any lapse of work authorization. Careful planning and strategizing beforehand, however, can help many utilize the 240 day rule while limiting or even avoiding entirely any future financial consequences.

Reprinted with permission.


About The Author

Michael (Chaim) Bergman, Esq. Michael (Chaim) Bergman, Esq. is an Associate Attorney with The Nair Law Group a firm representing business and corporate clients in all matters of employment-based immigration. His practice focuses on non-immigrant and immigrant visa matters for companies and individuals in the IT industry.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.