Did I overstay my H1B?

Hi Friends,

Mine is a long and confusing story.

I have I140 approved in Dec 2013.

My H1B was due to expire on May 30,2017.

Applied for H1B extension on May 16,2017.

Work location changed in October 2017 and H1B amendment was filed while H1B extension was already in progress.

Amendment was upgraded to premium on Dec 2017.

In December 2017, my employer got into criminal offence and my petition went on hold into Administrative processing. Waited for USCIS decision till Oct 2019.

I traveled out of USA in Oct 2019.

Question I have is, did I accrue unlawful presence from May 2017 till Oct 2019?

If yes, can I not enter US again or apply for GC as I have an approved I140?

It would be great if anyone here can answer my question.


You can’t work after 240 days if your H1B extension is still not approved at that point. However you can keep living in the US till your petition is approved or denied. If denied you have to leave or find a new employer within 60 days.

If you worked after 240 days while your H1b extension was under processing then you may be barred from entering the US.
You can only file for GC if your new H1B employer can sponsor your GC and provided you dont have inadmissibility issue.
You may be able to port your priority date from your approved I-140 to the new employer.

Thanks for quick reply Kalpesh… Seems I am in a difficult situation.

However, I have found this in here USCIS 240-Day Rule - Stay in US after i94 Expiry (H1B, H4, B1/B2 Extension) - USA

It says if it’s H1B extension+ Amendment, 240 day rule is not applicable and employees can work beyond 240 days. Since I have applied for H1B extension followed by H1B amendment, I assume I didn’t accrue unlawful presence as per this website.

Please correct me if I am wrong.


Not sure how far this is right.

Anyone has any idea?

Also, if I am going to serve 10-year bar, will I be able to file GC after 10-year bar without any issues?


I would just go by the USCIS rule book but your can always consult an attorney to get more clarity for your specific situation.

8 CFR 274a.12(b)(20)


Thanks Kalpesh for sharing the USCIS rule book.

Will my overstay be waived once I serve 10-year ban?

Also, currently I m in Australia. Once I get Australian citizenship, I would be eligible to work in USA on E3 visa. Will my H1B overstay cause a problem to enter USA on E3 non immigrant visa as well?

@Kalpesh_Dalwadi and @Anil_Gupta

am22tech website says that if (H1B extension+ H1 Amendment) are filed together, the employee can work beyond 240 days.

In my case, I have filed H1B extension followed by H1B amendment before decision was made by USCIS on my H1B extension.

Does that mean working and staying beyond 240 days is fine in my case ?

My H1B extension on I140 was filed in May 2017 and H1B Amendment was filed in October 2017 (prior to receiving a decision on my H1B extension from USCIS).