If a petitioner files a timely petition for an employee seeking continuation of the same employment in the same status with the same employer without change, the beneficiary may continue to work for their sponsoring employer for an additional 240 days beyond the expiration of their current stay, while the application for extension of stay is pending. For petition-based categories, "timely" means that USCIS receives the extension package (with proper fees):
- Before the expiration of the current period of H-1B status (see 8 CFR 214.1(c)(4))
-AND- - Before the expiration of the employer's H-1B petition
This 240-day rule applies only to the following nonimmigrant categories: A-3, CW-1, E-1, E-2, E-3, G-5, H-1B, H-1B1, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R or TN.
These are all nonimmigrant categories where the alien is authorized for employment with a specific employer incident to status.
If USCIS does not adjudicate the extension petition within 240 days of the expiration of the prior petition validity period, the beneficiary must stop working until USCIS approves the petition.
Under sections 104 and 106 of the American Competitiveness in the 21st Century Act (AC21), it is possible to obtain H-1B status beyond the six-year limit for the following individuals who have applied for US Legal Permanent Residence (Green Card):
- 365 days or more have passed since the filing of any application for labor certification (Form ETA 750 or 9089) that is required or used by the alien to obtain status as an EB immigrant; or
- 365 days or more have passed since the filing of an EB immigrant petition (I-140); or
- The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number.
An application for extension of stay under the AC21provisions will, like a regular application for extension of stay, benefit from the "240-day rule".
It is imperative that Hiring Departments contact ISSS AS SOON AS THEY KNOW that an H-1B position will end, either through voluntary or involuntary means.
Employment terminated by the Employee:
If an H-1B worker voluntarily terminates his or her employment, an employer is not liable for the cost of return transportation abroad [8 C.F.R. 214.2(h)(4)(iii)(E)]. The employee should depart the United States on the final day of employment with the sponsoring employer, unless he or she has secured H-1B sponsorship of another employer or otherwise changed immigration status. There is a discretionary 60 day grace period, but employee should be aware that this grace period is not automatic.
Employment terminated by the employer:
If the employer dismisses the H-1B worker prior to the end of the period of authorized employment, the employer must present a check to the employee equivalent to the reasonable costs of return transportation to the alien's last place of foreign residence. Dismissal for any reason, even for cause, triggers this provision. INA 214(c)(5)(A); 8 C.F.R. 214.2(h)(4)(iii)(E)
Steps To Be Taken Once Department notifies ISSS that an individual’s employment will be terminated:
- Department researches the average cost of return air fare to the employee's place of last residence (at least 3 quotes) and sends the information to ISSS
- ISSS will create a "Return Transportation" letter
- Department requests check from Accounts Payable using "Return Transportation" letter as documentation for AP
- ISSS withdraws the LCA and then sends a withdrawal request to USCIS via UPS
- Once ISSS has a check from AP, ISSS mails the Return Transportation letter with the check, a UPS label listing ISSS’s address and a UPS envelope to employee through UPS
- USCIS will send a Notice to ISSS approving our Withdrawal of the H-1B Petition Request
- ISSS will notify Department and HR a copy of withdrawal notice from USCIS
