H-1B processing has slowed, and applicants from certain countries face an adjudication freeze that even premium processing cannot get around. H-1B employees and HR teams keep asking the same questions: If an employee’s H-1B expires before the new petition is approved, can they keep working? And how should the company update Form I-9?
The answer depends on what type of H-1B petition the employer filed. How long an employee can lawfully keep working while it is pending varies widely by petition type. In some cases it is capped at 240 days. In others it lasts until USCIS makes a decision.
The threshold requirement: Every kind of continued employment discussed below requires the employer to file the petition before the employee’s current H-1B status expires. If the petition is filed after the status has expired, these automatic extensions do not apply.
What is I-9 reverification? Form I-9 is the employment eligibility form every U.S. employer must complete for every employee. When an employee’s work authorization is about to expire, the employer must re-check it and update the form. This is called reverification. While an H-1B extension is pending, the employer can annotate the form based on the filed petition rather than waiting for the approval.
Take Grace as an example. She works for Company A in H-1B status, and her status is about to expire.
Scenario 1: Company A extends Grace’s current job. How long can she work while it’s pending?
Background: Before Grace’s status expires, Company A files an H-1B extension with no change to her position, duties, or salary, and selects “continuation of previously approved employment without change with the same employer.”
Analysis: This is where the 240-day rule applies. Grace can keep working for Company A after her prior status expires for up to 240 days, or until USCIS issues a decision, whichever comes first.
If the 240 days run out before the petition is approved, Grace must stop working. With processing times stretching out, this limit is no longer just theoretical.
How HR updates the I-9: In the Additional Information field of Section 2, write “240-day Ext.” and the date the H-1B petition was filed with USCIS.
Keep in mind:
- Calendar the 240-day deadline and notify Grace to complete reverification before it arrives. If USCIS decides the petition earlier, update the I-9 once the decision is received.
- The 240-day rule is not limited to H-1B. It also covers certain other work visa categories.
Scenario 2: Grace moves to Company B. How long can she work then?
Background: Grace accepts an offer from Company B, which files an H-1B change-of-employer petition before her status expires.
Analysis: This falls under H-1B portability. Once the petition is filed and the start date on the petition has arrived, Grace can begin working for Company B without waiting for approval.
Unlike Scenario 1, there is no 240-day cap. Grace can keep working until USCIS decides Company B’s petition, or until the requested H-1B validity period ends.
To qualify for portability, Grace must have been lawfully admitted in H-1B status, must not have worked without authorization since her last admission, and Company B must have filed a petition with a genuine basis.
How HR completes the I-9:
- Grace can present her unexpired I-94 from her previous employer together with her unexpired passport as a List A document. Alternatively, the I-94 can serve as a List C document paired with a List B identity document.
- In the Additional Information field of Section 2, write “AC-21” and the H-1B filing date.
- Calendar the end of the requested H-1B validity period and notify the employee to complete reverification before it. If USCIS issues a decision sooner, update the I-9 then.
Scenario 3: Grace stays at Company A, but her job changes. Can she avoid the 240-day cap too?
Background: Grace does not change employers, but Company A changes her job, for example through a significant change in work location or duties. It files an “Amended Petition” or a “Change in Previously Approved Employment” rather than a continuation without change.
Analysis: The H-1B portability regulations expressly state that “new employment with the same employer” can also qualify. When the Department of Homeland Security issued its rule in 2016, it explained that an employee whose employer files a changed-employment or amended petition may work under the new terms until the petition is decided, and that only a continuation without change is subject to the 240-day limit.
On that reasoning, Company A can annotate the I-9 with “AC-21” and the filing date, as in Scenario 2, so Grace can keep working while the petition is pending.
Attorney’s note: This is a relatively new and debated approach. The statute refers to a “prospective employer” filing a “new petition” for “new employment,” and some attorneys read it as covering only a change of employer. Neither USCIS nor Immigration and Customs Enforcement (ICE) has issued any published decision or formal guidance on this point, and the employer I-9 handbook does not address it. In an I-9 audit, it could become an issue the employer has to explain.
An employer taking this approach can keep an excerpt of the relevant regulations and official commentary with the I-9 as evidence of good-faith compliance. Whether to use it means weighing the risk of losing the employee to processing delays against the risk in an I-9 audit. The decision should be made with counsel, based on the company’s own tolerance for risk.
The Three Situations at a Glance
- Continuation without change: up to 240 days, or until USCIS decides, whichever comes first. I-9 annotation: “240-day Ext.”
- Change of employer: until the petition is decided or the requested validity period ends. I-9 annotation: “AC-21”
- Amended petition or changed employment with the same employer: May follow the portability rule under the regulations, but there is no official guidance and there is audit risk. I-9 annotation: “AC-21”
Practical Steps for Employers and Employees
1. Keep proof of timely filing. In every scenario, keep the delivery confirmation, the USCIS receipt notice, proof of payment, and a copy of the petition with the I-9. Being able to prove the petition was filed before status expired is what continued employment rests on.
- ❌ Risky: Mailing the petition and simply waiting for the receipt without keeping shipping and delivery records. If the receipt is delayed, there is no way to prove timely filing in an audit.
- ✅ Safe: Save the tracking number and delivery confirmation on the day the petition is sent, and file them with the receipt notice once it arrives.
2. When time is tight, consider filing online. Where an H-1B petition can be filed electronically, an official receipt notice often arrives the same day. This helps with I-9 compliance and avoids mail delays.
3. Plan the petition type early. If a long processing time is expected, HR should talk with counsel early about whether the employee’s situation is truly a continuation without change, or whether there is a real job change that calls for an amended petition. The petition type must accurately reflect the job. It should never be chosen just to extend work authorization.
4. Calendar every key date. That includes the original H-1B expiration date, the 240-day deadline, and the end of the requested validity period. Notify employees in advance so they can complete reverification.
Conclusion
Whether an employee can keep working while a petition is pending comes down to whether it was filed on time, whether the right petition type was chosen, and whether the employer has the documents to prove it. Two employees can both have “a pending H-1B,” yet a continuation without change and a change of employer can leave them months apart in how long they can work. This area is still developing, and employers and employees should watch for further official guidance.
The LYD Law immigration team can help employers choose the right H-1B petition type, plan filing timelines, and advise on I-9 reverification and recordkeeping while a petition is pending. If your company has H-1B employees with upcoming expiration dates, or is considering an amended petition, we welcome you to contact us to assess the risks and options for your situation.
