An H-1B holder can continue to live and work in the US for up to 240 days while the application for extension of his visa is pending as long as the extension application was filed prior to expiry of the tenure in his original H-1B visa. As USCIS takes considerable time to process the extension applications, it’s likely that the period in the original H-1B visa has expired and the employee’s stay in the US is solely dependent on the 240-day work authorisation.
If the application for extension is denied, the individual would be held as “unlawfully present” as on the date of denial and USCIS can issue an NTA and deportation proceedings would commence. Visa extension applications can no longer be taken lightly as the denial rate, on various grounds, is on the rise.
Says Rajiv S Khanna, managing attorney at Immigration.com: “USCIS takes more than six months to adjudicate an H-1B application. In many cases it is inevitable that the previous H-1B status will expire while the application is still pending. Thus, applications should be filed at the earliest. For extension of H-1B visas, applications can be filed up to six months before the expiry of the existing visa tenure. Second premium processing must be opted for, which is more expensive but entails a shorter processing timeline.”