H1B recapture of time abroad and 240-day rule

Hi Anil,

I’m in the following situation:

My PERM application was submitted on 1/13/2020 and still in Analyst review while my H1B expires on 9/5/2020 (6th year). I have 112 days abroad that can be captured, which then would put my new H1B expiration date at 12/26/2020 if the extension petition is approved.

However, after my HR VP talked to the lawyer, it sounds like they seem to think we still have plenty of time to file the extension petition. Based on USCIS estimated processing time across all 4 service centers, it can take between 2-8 months to process H1B extension at this point, without premium processing that is. It looks like the lawyer wants to take advantage of the 240-day automatic extension rule.

Here’s where I have questions. Assuming PERM has been denied and my company won’t be pursuing PERM options any further meanwhile my extension petition is still pending as of 9/6/2020, I get the 240-day extension, correct? That means I have until 5/3/2021 to get the extension petition result back.

However, let’s say on 1/1/2021, I hear back from USCIS that my extension petition has been approved for an extra 112 days. Will the 112 days be added on top of (1) the original H1B expiration date (9/5/2020), (2) the approval date (1/1/2021) or the 240-day extended date (5/3/2021)?

(1) seems to make the most sense to me because if someone submits their extension petition well ahead of time, that’s what they’ll probably get; otherwise people will take advantage of the 240-day extension left right and center. But if it’s (1), wouldn’t I be in trouble for staying past the expiration date of my legal status? Is there a 60-day grace period kind of thing?

Thank you,

Are you sure your attorney told you that you can use 240 days even after H1B 6 year max out?

If they did, then i do not agree with it. You cannot get 240 days just because you file extension.

6 year max out is a hard stop.

Thanks for your response, Anil.

I wasn’t told directly by the lawyer. I was briefed by the HR rep (in this case the VP of HR) who have had many conversations with the lawyers regarding applying for my extension (by recapturing abroad days).

It’s the approach that both lawyers, the one who handled my case before but then left and the current one, seem to agree on. They probably bank on the fact that USCIS is currently taking longer than 2 months (regular processing) to decide on extension request.

As far as my research goes, and please correct me if i’m wrong, as long as you file the extension before the I-94 expiry date (9/5/2020 in my case) and the extension request is still pending as of the I-94 expiry date, you get an automatic 240-day “extension”. This extension, like you imply however, is not an official extension. It’s more like a courtesy so that should USCIS take a very long time to process the extension (which I think is unlikely), the alien worker is still allowed to work up to 240 days after the I-94 expiry date waiting for the decision. According to USCIS’s C1 info pamphlet, DHS can still bring removal proceedings regardless of a pending extension application.

My concern is, and as you implied about the hard stop, that if I don’t get a decision on the extension or on PERM after 12/26/2020 (112 days after my original I-94 expiry date), I’m in very dangerous water. Because, should USCIS approve my application, the 112 abroad days seem to apply back to the I-94 expiry date (which I need confirming). If USCIS denies, I will then accrue “unlawful presence” any day I still stay in the states and jeopardize my future attempt of coming back.

My question is: Should I go ahead and convince my employer to forgo the bet on the 240-day “extension” and just file for premium processing along with the extension application?

Another thing just came up too, the PEO my company partners with said they probably won’t process my paycheck after 9/5/2020 unless we can show paperwork as evidence that my work authorization has been extended. If the paycheck stops, am I in trouble regardless of whether I continue to work for the company or not?

Thank you,

You are mixing two things to extract the benefit that you want.

The 240 day rule allows you to stay in US past your i94 expiry as long as your 6 year limit has not reached.

I suggest to talk to an independent attorney if your employer is not letting you talk to company’s official attorney.

Thanks, Anil.

I understand the 240-day rule and you are exactly right. I have a feeling the lawyer is trying to take advantage of the 240-day rule to perhaps get us to at least January 13th 2021 if my PERM and extension request are still pending then. That way they can file for 7th year H1B because then my PERM application will have been in pending status for at least 365 days.

It’s a very dicey game they are playing. To be fair to them, it’s kind of my company’s fault for filing so late and for DOL to take so long (6 months+) to adjudicate PERMs. The lawyers are just trying to be creative to buy more time.

In my head I try to keep the 12/26/2020 date as my hard stop to leave the country to avoid “unlawful presence.”

I thought exactly what you suggested. I will try to consult an independent counselor/attorney regarding my case.

Thanks again.