New York Lawyer's Legal Updates

240 Day Rule For Work Visas

Author: New York visa attorney Alena Shautsova

One is authorized to work in the United States if his status permits him to do so (for example, an Asylee does not need a work authorization to accept employment or to be self-employed), or if he has an approved I-765 application (for example, L2 visa/status holders). A person whose status is pending or whose EAD expired may not, usually, engage in employment in the U.S. For example, an asylum applicant who is waiting for adjudication of his/her asylum claims and whose EAD expired, cannot legally work in the United States without receiving a new EAD. In certain situations, however, the law provides for an automatic extension of the work authorization once the person files for an extension of expiring status. To wit, holders of A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1, and TN status/visas enjoy automatic 240 day extension of their ability to legally work in the United States once an employer files for an extension of their status. The regulations, unfortunately, exclude asylum seekers.

Recently, the regulations were amended to add to the automatic extension for H-1B1 (Chile, Singapore), E-3 (Australia) and CW-1 (Commonwealth of the Northern Mariana Islands) nonimmigrants whose status has expired, provided that the employer timely filed an extension of stay with U.S. Citizenship and Immigration Services.

The 240 day rule is helpful to employees and employers in terms of I-9 compliance. Under the DOJ (Department of Justice) rules, an employer may not employ a person whose eligibility for employment in the United States is not verified or whose status is expired. The 240 day rule makes it possible to continue legal employment of workers whose status expired, provided they are waiting for the extension of their status applications.

It should be noted that an employer must re-verify the employee’s employment authorization in Section 3 of the I-9 form once a decision is received on the request for an extension of stay or by the end of the 240-day period, whichever comes first. Employers who fail to do so, face risks of sanctions and fines by the Department of Justice.

05 March 2016
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