Discrepancy in Extended Work Authorization between H-1B Extension and H-1B Change of Employer Petitions

In the Department of Homeland Security’s final rule on high-skilled workers published on November 18, 2016, it confirmed a long-standing policy rule that those foreign national beneficiaries of H-1B change of employer petitions may begin working for the new employer upon receipt of its H-1B petition at USCIS (H-1B portability rule) and that such employment authorization may continue until the petition is adjudicated. However, it did not grant such extended employment authorization to those beneficiaries of H-1B extension petitions. Pursuant to a different section of the law (§274.a12(a)(20)), these beneficiaries are relegated to 240 days of extended work authorization so long as the H-1B extension petition was timely filed (filed before their current petition expired). The 240-day accrual begins on the day of the expiration of the current H-1B petition being extended.

It is critical that the petitioner keep track of an H-1B extension petition and convert it to premium processing before the 240-day deadline is reached or the beneficiary will have a gap in employment (although the beneficiary will be allowed to remain in the US until the petition is adjudicated). I recommend that the Form I-907 requesting conversion of the petition to premium processing be filed at least six weeks in advance, since USCIS has two weeks to make a decision or request additional evidence and then two weeks to make a decision after receiving the response to the request for evidence.