Protecting The Rights Of Immigrants Nationwide

H-1B Visa FAQ

Question

How long is the work authorization period for H-1B employees while their H-1B transfer petition or H-1B extension petition is pending?

Answer

H-1B Extension

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. 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.

H-1B Transfer

In regards to H-1B transfers, Section 105 of the AC21 statute allows for H-1B portability. Specifically, section 105 allows an H-1B nonimmigrant worker to begin concurrent or new H-1B employment upon the filing of a timely, non-frivolous H-1B petition. Employment authorization based on the pending petition continues until adjudication. The statute does not refer to a maximum amount of employment authorization after the current I-94 expires (such as the 240 day rule for H-1B extensions). The employee is allowed to work until adjudication. However, if the H-1B petition is denied, the employment authorization provided under this provision ceases.

If an H-1B employee has an H-1B transfer petition pending then they will be allowed to work until adjudication of the H-1B transfer petition. If an H-1B employee has an H-1B extension petition pending then they will be able to work for up to 240 days beyond the expiration listed on their most recent I-94.

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