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Recapture of Unused H-1B Time

An alien worker can stay in the United States in H-1B status for a maximum of six years. Upon reaching the six year limit, the H-1B worker can either reset the “clock” of the six year limit by residing abroad continuously for one year, or extend his or her stay in the U.S. beyond the sixth year. There are two ways that an H-1B worker can extend his or her stay after six years in H or L status: (1) recapture time spent outside the U.S., or (2) apply for extension pursuant to AC21. They are not mutually exclusive and an H-1B worker can utilize both in a single petition to maximize his or her period of stay. A detailed discussion of the second option can be found here. This article will discuss how to capture time spent outside the U.S.

As stated above, an H-1B worker is entitled to a six-year period on H-1B status, commencing on the date of the original Form I-94 showing when the alien first entered the U.S. in H-1B status. Therefore, it is the date of the actual entry, and not the approved commencement date on the approval notice, that starts the six-year clock. For example, if the H-1B approval notice shows an approved period of stay starting January 1, 2013 but the alien did not enter the U.S. in H-1B status until April 1, 2013, then the clock does not start to run until April 1, 2013 and his or her six year limit on H-1/L-1 status is set to expire no earlier than March 31, 2019.

Moreover, USCIS has clarified that the any time that an H-1B worker spends outside of the U.S. does not count toward the maximum six-year period. Specifically, in a USCIS Memorandum dated October 21, 2005, USCIS has specified that “time spent outside the U.S. during the validity of an H-1B petition may be added back, or “recaptured” to the period of stay allowed as an H-1B without demonstration that the time spent outside the U.S. was meaningfully interruptive. The applicant need only demonstrate that he or she was outside the U.S. for the period of time requested.” Moreover, the memorandum further provides that H-4 or L-2 dependents (spouse and minor child) of the principal alien who qualifies for the recapture may also receive stay coextensive with that of the principal alien.

Example: H-1B alien travels outside the U.S. for vacation one week per year during his or her six-year period of stay. He or she can recapture six weeks spent outside the U.S. to further extend his or her stay in H-1B status.

Those who wish to recapture the unused H-1B dates must clearly document the H-1B worker’s stay in the U.S. It is highly recommended that the alien keep an accurate list of dates of each exit and entry and retain evidence such as: (1) entry and exit stamps in the passport; (2) airplane boarding passes, tickets; (3) frequent flier statement; and (4) credit card charges as evidence of dates of travel abroad.

Moreover, per8 C.F.R. section 214.2(h)(13)(v), recapture is not necessary for certain H-1B workers who reside abroad and regularly commute to the United States to engage in employment that: (1) is seasonally or intermittent; (2) is for an aggregate period of six months or less per year; or (3) is part-time (and the employee resides abroad and regularly commutes to the U.S). In these situations, extensions must clearly demonstrate that the H-1B qualifies for the exception provided in 8 C.F.R. section 214.2(h)(13)(v) by “clear and convincing proof” such as arrival and departure records, copies of tax returns, and records of employment abroad.

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