Can I Work While My H-1B or L-1 Extension Is Pending? The 240-Day Rule

Almost everyone who calls about a pending work visa extension is counting from the wrong day. The rule itself is simple. The date it runs from is not the one most people assume. Watching the wrong calendar while trying to work normally is a miserable way to spend a year.

Where the clock actually starts

The rule lives at 8 C.F.R. § 274a.12(b)(20). Say your employer filed to extend your stay on time. If you hold H-1B, L-1, O-1, TN, or E status, you may keep working for that same employer while the petition sits at USCIS.

That permission lasts up to 240 days. Here is what people get wrong. The 240 days start on the day your old I-94 expired. They do not begin on the filing date, and they have nothing to do with the end date your employer requested in the petition.

Work an example. Your I-94 expired July 27. Your employer filed on June 26. The 240 day clock starts July 27, which puts the outer limit in late March of the following year, not in February and not in October.

The three conditions

Three conditions have to hold. The extension must have been filed by the same employer you are working for. It must have been filed before your authorized stay expired, not after. And you must have been maintaining status when it was filed.

Miss the filing deadline and this provision gives you nothing at all. One thing to know while you wait. A timely filed extension keeps your stay authorized. You are not building up unlawful presence while the case sits at USCIS. The pendency itself is not damaging you.

What ends it early

Two things end the authorization early. The first is a decision. The moment USCIS decides the case, the 240 day provision stops doing any work. If the petition is approved, you work under the new approval and the new I-94 date. If it is denied, your work authorization ends on the date of the denial even if you are on day thirty of the 240.

The second is subtler and catches people who are near a maximum period of stay. Suppose your employer asked for a short period because you are hitting the five year L-1B limit or the six year H-1B limit. The approval only carries you to that date.

The 240 day rule cannot push you past a limit set by statute. And if approval arrives after that requested end date has already gone by, the safe reading is that you should not have relied on the rule past that date. USCIS has never squarely resolved that scenario, so do not build a plan on the aggressive reading of an unresolved question.

What employers should document

For employers, this is also an I-9 issue. When the provision applies, human resources should document the timely filing and the receipt notice and calendar the reverification date rather than treating the expired I-94 as an automatic stop.

One last piece of housekeeping. Confirm that what was actually filed is a request for extension of stay, meaning a Form I-129 filed with USCIS, and that your employer holds the receipt notice on Form I-797C.

A blanket L petition on Form I-129S submitted for consular processing is not a request to extend your stay. If nobody filed the right form, the 240 day rule does not apply and you have been out of status since your I-94 expired.

This week: Print your I-94 from the CBP website and note the expiration date. Get the I-797C receipt from your employer and confirm it is for a Form I-129 filed with USCIS. Count 240 days from the I-94 date, not the filing date.

Bring me your I-94 and your receipt notice and I will do the math against the documents rather than the internet. Call or text 512.761.8479.