Continuation of Employment under 240-Day Rule

Under the “240 day rule”, a beneficiary of a timely filed extension of stay can continue his/her employment with the petitioning employer, while the extension of stay is pending with the USCIS, for a period of up to 240 days beyond the expiration of the prior period of authorized stay. 

Even though the beneficiary is not actually in a lawful nonimmigrant status during the pendency of such a petition, s/he does not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act while the extension of status application is pending, as long as it was filed prior to the expiration of Form I-94 provided the beneficiary has not violated the terms of her/his nonimmigrant status. 

If the application for extension of stay is ultimately approved by the USCIS, the approval will relate back to the date the Form I-94 expired and the status during the pendency of the application will then be considered to have been lawful, but if the application is denied then the beneficiary of the petition may be required to cease employment and immediately depart the United States.  Also, any nonimmigrant visa in beneficiary’s passport granted in connection with the denied classification becomes void thereby requiring the beneficiary to apply for a new visa at a U.S. consulate in his/her home country (not a third country, expect in rare instances as determined by the U.S. Department of State).