If an H-1B applicant is unable to extend his or her H-1B visa for more than six years, and if he is not eligible for work authorization based on a pending permanent residence application, what does the H-1B applicant do to avoid these limitations? The employer could file an extension of the employee’s H-1B status for the period of time the employee was physically outside the United States during his or her H-1B status. This strategy allows the applicant to “recapture” or use the days of his or her H-1B status otherwise lost while outside the United States, on vacation for example. The application for H-1B extension must be filed before the employee’s current H-1B status expires.
Regardless of the number of days available for recapture, the law allows the employee to remain in legal status beyond the I-94 expiration date during the pendency of the extension application for up to 240 days or until USCIS makes a decision, which ever comes first.
The H-1B applicant can remain and work beyond that time, if USCIS grants the extension for a period in excess of those 240 days. Unfortunately, the number of days authorized to be recaptured is calculated from the date of expiry of status, not the date of approval.
