I-9 Reminder for H-1B employers: the 240-day rule

As a result of the suspension of H-1B premium processing and longer processing times, many employers are concerned about having to put H-1B employees on unpaid leave if U.S. Citizenship and Immigration Services (USCIS) does not adjudicate their extension petitions within 240 days.

The 240-day rule says that H-1B employees may continue working for up to 240 days while their petition to extend their status is pending with USCIS. If their petition has not been approved or denied after 240 days, employees must stop working or risk violating their status, and employers risk violating I-9 employment eligibility rules.

While the 240-day restriction applies to employees seeking to extend their H-1B status with the same employer, it does not affect employees who are awaiting a decision from USCIS on a petition to change employers or to amend their H-1B petition due to a new job location or other material change to the terms of employment that requires the employer to file for an amended petition. Therefore, these H-1B employees are not restricted to the 240 days and may continue to work until their petition is adjudicated.

BAL Analysis: When conducting internal I-9 audits and reviewing H-1B employees for employment eligibility, human resources staff should be aware that the 240-day rule applies to employees with pending H-1B petitions to extend their status with the same employer. However, employees who have filed an amended H-1B petition or a new H-1B petition based on a change of employer are not restricted by the rule, and the premium processing suspension should have a minimal effect on their continued employment if a decision on their petition remains pending beyond 240 days.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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