United States — immigrants living in the US · immigration

Can I Work After 240 Days While H-1B Extension Is Pending in the United States?

Under 8 CFR § 274a.12(b)(20), your temporary employment authorization automatically ends 240 calendar days after your Form I-94 expires if USCIS has not yet adjudicated your timely filed H-1B extension. While you may remain in the United States in an authorized period of stay while the petition remains pending, you must stop all employment on day 241 to avoid unauthorized work violations. Your employer can immediately file Form I-907 to request Premium Processing and resolve the backlog.

The 240-Day Rule in the United States: 8 CFR § 274a.12(b)(20)

In the United States, foreign specialty occupation workers—frequently arriving from countries such as India, China, the Philippines, Canada, and Mexico—face severe processing delays when renewing their status. Under federal immigration regulations at 8 CFR § 274a.12(b)(20), an H-1B nonimmigrant worker whose status has expired, but whose employer timely filed an extension petition on Form I-129 before the expiration of their authorized stay, receives an automatic extension of employment authorization. However, that employment authorization is legally capped at a maximum of 240 calendar days beginning on the date the worker's Form I-94 expires.

The plain language of the regulation dictates that if United States Citizenship and Immigration Services (USCIS) does not adjudicate the Form I-129 petition before the 240th day, your legal authorization to perform work for that employer terminates automatically. Even if the delay is entirely caused by USCIS processing backlogs rather than any fault of your own, federal law does not grant an automatic grace period beyond 240 days for continued employment.

Work Authorization vs. Legal Stay: What Happens on Day 241?

A critical distinction under U.S. immigration law is the difference between authorization to work and authorization to remain in the country. Crossing the 240-day mark does not mean you are suddenly deportable or accumulating unlawful presence. Under long-standing USCIS policy and INA § 212(a)(9)(B), you remain in a 'period of authorized stay' authorized by the Secretary of Homeland Security as long as your timely filed Form I-129 petition remains pending and unadjudicated. You do not accrue unlawful presence during this administrative window.

However, continuing to perform services—whether paid, unpaid, remote, or 'banking hours'—violates INA § 274A. Engaging in unauthorized employment can jeopardize your current nonimmigrant status, render you ineligible for adjustment of status to permanent residence under INA § 245(c), and force your employer to violate federal Form I-9 reverification requirements. On day 241, your employer must halt payroll and take you off active duties until USCIS issues an official approval notice.

How to Break the Stalemate: Premium Processing and Your Options

You do not have to sit helplessly as your 240-day clock runs out. The fastest and most reliable remedy is for your sponsoring employer to file Form I-907 (Request for Premium Processing Service). Once USCIS receives Form I-907 and the associated filing fee, the agency is legally required to take an adjudicative action—such as an approval, a denial, or a Request for Evidence (RFE)—within 15 business days. If you are approaching day 200 or 210, your employer should upgrade the pending Form I-129 immediately.

If day 240 arrives before an approval is issued, you must pause all work immediately. Some employers place the employee on an unpaid leave of absence, while others require the employee to cease all internal communications until the Form I-797 approval notice is in hand.

Please note: Caunsel is not a law firm, does not file immigration petitions, and does not provide legal advice. You can use Caunsel to research federal employment authorization regulations, organize your immigration notices and filing dates in one secure place, or schedule a strategy session with an independent immigration attorney.

Steps

• Verify your exact day-240 deadline by locating the 'Admit Until Date' on your most recent Form I-94 and counting 240 calendar days forward.
• Inspect your Form I-797C Notice of Action to verify that your employer filed Form I-129 prior to your I-94 expiration date.
• Formally request that your employer or their immigration counsel file Form I-907 to upgrade your pending H-1B petition to Premium Processing.
• If day 240 passes without approval, instruct your employer's HR department to remove you from active duty and suspend payroll to prevent unauthorized employment violations.
• Monitor your receipt number daily using the USCIS Case Status Online tool to detect approvals or Requests for Evidence.

Common mistakes

• Assuming you can continue working off the clock, volunteering, or checking work emails after day 240 while waiting for USCIS.
• Believing you must immediately depart the United States on day 241, when in reality you remain in an authorized period of stay while your petition is pending.
• Waiting until days 230 to 240 to notify your employer's legal department about the approaching deadline, leaving no time for a Premium Processing upgrade.
• Confusing the 240-day rule with the automatic 540-day employment authorization document (EAD) extension, which applies only to select Form I-765 categories and not to H-1B Form I-129 petitions.

Questions people ask

Can I be placed on unpaid leave after the 240-day mark while waiting for my H-1B approval?

Yes. An employer may place you on an unpaid leave of absence or non-working status once the 240-day employment authorization under 8 CFR § 274a.12(b)(20) expires. You may not perform any substantive work, log into corporate accounts, or receive wages for work performed during this hiatus.

Does reaching day 240 mean I am accumulating unlawful presence in the United States?

No. As long as your H-1B extension petition was timely filed prior to your Form I-94 expiration and remains pending with USCIS, you are in a period of authorized stay. Unlawful presence under INA § 212(a)(9)(B) does not begin accruing unless USCIS denies your petition.

Can I travel outside the United States after my 240-day period expires while the extension is pending?

Traveling internationally while an extension of stay is pending generally causes USCIS to deem the change/extension of stay portion of your petition abandoned. If you depart, your employer must wait for the petition approval, and you must obtain an H-1B visa stamp abroad before you can re-enter the United States and resume work.

General information only, last updated 2026-10-11. Caunsel is not a law firm and does not practise law. AI answers and this guide are not legal advice. Verify filings, deadlines, and statutes with a licensed lawyer in United States — immigrants living in the US.