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Once the six year cap is reached, the foreign national must be physically outside the U.S. for one full uninterrupted year in order to “reset” the 6 year clock.

240 Day Rule:

This is the H1B visa 240 day rule where an individual can continue to work for the current employer for up to 240 days after the current H-1B visa expiration if he/she is waiting for the USCIS decision.

8 C.F.R. § 274a.12(b)(20)

(20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to §§214.2 or 214.6 of this chapter.

These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.

Such authorization shall be subject to any conditions and limitations noted on the initial authorization.

This rule does not allow you to stay beyond the expiration date requested in the petition for which you are awaiting the decision.

However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision.

Note. If the H1B worker needs to travel during this time, they may not be able to return until they receive the new H-1B Visa. Premium processing is a viable option in this scenario.

In limited circumstances, H1B visa status can be extended beyond 6 years if:

• The foreign national is the beneficiary of an approved I-140 petition.
• The foreign national is the beneficiary of a PERM petition or I-140 petition that has been pending for over 365 days.
• The foreign national is recapturing time spent outside the US during the past 6 years in H-1B status.

1 year extension Based on Pending PERM or I-140 petition under AC-21 104(a)

You may extend your H1B status annually in one-year increments if your PERM petition or I-140 petition was filed at least 365 days prior to the day when you reach the six-year limit.

3 year extension Based on Approved I-140 petition under AC-21 106(c)

You may extend your H1B status for 3 years if you are the beneficiary of an approved I-140 petition but your priority date is not current, (immigrant visa number is not available to you).

Recapturing Time Spent Outside the US

An H1B holder may apply for an H1B extension and “recapture” days spent outside of the US.

If the H1B visa holder was outside the US in the 6 years they held H1B status, they can recapture those days in an H1B extension application.

The H1B holder would submit the exit from US and entry back to US dates, as well as the corresponding stamps and I-94 copies from his/her passport.

H1B Renewal / Extension Required Documents

From the Employer:

• Copy of the Job Offer Letter containing the Job Title, Salary Offered. Signed by both employer and foreign national.
• Detailed Job Description.
• Company Brochure and/or any marketing material.
• Copy of most recent Financial Statement, Annual Report or Business Plan, if available.
• Copy of Articles of Incorporation, if available.

From the Foreign National:

• Copies of all U.S. visas, I-94’s and I-797 approval notice(s).
• Copies of University Diplomas.
• Copies of Transcripts from University Degrees.
• Copy of Academic Evaluation of Foreign Degree, if available.
• Copies of letters of experience from previous employers, if available.
• Copy of Resume.
• Copy of 3 most recent paychecks, unpaid leave of absence letter, or letter from employer as other proof of employment.

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