H-1B 240-Day Rule Explained: Do You Have to Leave the U.S.?

Summary

The presenters discussed several U.S. immigration issues, led by the H-1B 240-day rule, and answered audience questions. Their comments were general commentary, not individualized legal advice.

H-1B 240-Day Rule

If an H-1B or L-1 extension with the same employer is pending, the worker may generally continue working for up to 240 days after the prior authorization expires. The presenters said that after those 240 days, the person may remain in the United States while the case is pending but must stop working.

They described delays affecting employees of several companies—including Microsoft, Adobe, TCS, Cognizant, and Infosys—and said some employers are pursuing premium processing or contacting elected officials. They are studying possible litigation. They also discussed Canada as a possible option for some workers, while stressing that they are not Canadian immigration lawyers and were not offering Canadian legal advice.

H-4 EAD Delays

The presenters recommended filing an H-4 extension and EAD application alongside the H-1B extension when possible, since the applications may be processed together. They said the end of the automatic EAD extension can leave people unable to work while a renewal is pending.

As possible steps, they suggested allowing USCIS some time to process the case, then considering congressional or ombudsman inquiries or litigation. Stephen Brown described mandamus lawsuits as one route for seeking action on delayed cases, but noted that outcomes vary: the government may issue a decision, request more evidence, or contest the lawsuit.

Changing Jobs With a Pending I-485

Under the AC21 portability rule, a person whose I-485 has been pending for more than 180 days may move to a job in a similar occupational area, provided the other requirements are met. The presenters said the new role need not be identical to the old one.

In their view, Form I-485J generally does not need to be filed before starting the new job. However, the new employer should be prepared to support the case, and the form may be needed if USCIS requests it or schedules an interview.

Layoffs and the 60-Day Grace Period

The presenters said the 60-day grace period remains in effect, although a proposal to eliminate it has been discussed. Eligibility depends on the worker’s immigration document remaining valid. Options they discussed included finding a new H-1B employer or changing to H-4 or L-2 status, where available.

They expressed skepticism about using B-2 status as a temporary bridge back to H-1B, citing recent cases in which both applications were denied. They also discussed F-1 status as a possibility for someone pursuing legitimate study, while warning against “day-one CPT” programs and noting that a change of status is discretionary.

Other Questions and Observations

The presenters addressed green-card travel, visa appointment shortages, delays in naturalization and other USCIS cases, and possible lawsuits over agency delays. They said they had not yet seen denials or requests for evidence on I-485 cases tied to the companies discussed, but considered the situation new and uncertain.

They also encouraged viewers to comment on proposed regulations through the Federal Register, explaining that substantive public comments may help establish a record for later legal challenges.

Presenters and Contributors

Rahul and Stephen (Steven) Brown were presenters and contributors. Jim was briefly addressed as a possible Q&A facilitator.