Recapturing Time Spent Abroad for H-1B Workers

By: Attorneys Robert L. Reeves and Natalie Joy Ang

H-1B visas are issued to alien workers employed in “specialty occupations” or fashion models of distinguished merit and ability. Non-immigrant workers can only be in H-1B status for a maximum of six years. How ever, the regulations permit an H-1B worker to “recapture” time spent outside the United States, as departures from the U.S. toll the six-year limitation.

H-1B workers seeking to recapture time spent abroad will have an easier time with such requests, following two favorable decisions by the Administrative Appeals Office (AAO). These decisions will help workers reaching their six-year H-1B visa limit to stay in the United States and continue working for their employer.

The USCIS applied a “meaningfully interruptive” standard to requests for recapturing time the worker was absent from the United States. The USCIS restrictively construed an absence “meaningfully interruptive” when an immigrant worker left the United States for medical treatment or extended work detail. In its recent decisions, the AAO confirmed that an H-1B worker could recapture any time spent outside of the United States. The AAO recognized that the time the H-1B worker spends in the United States is dependent on the period(s) of lawful admission. When the H-1B worker leaves the United States, that person is no longer in H-1B status. The H-1B worker renews that status with each readmission to the United States. Subsequently, the H-1B worker may be granted an extension of H-1B status to cover any time spent outside the United States.

The American Competitiveness in the 21st Century Act (“AC21”) allows an H-1B worker to extend his status beyond the six-year limitation if a labor certification or immigrant visa was filed, and 365 days or more has elapsed since the filing of that application. Recapturing time can be especially crucial for individuals who are in the process of obtaining permanent residency and would like to remain in the United States beyond the six-year limitation. For example, if an employer filed an immigrant visa petition 360 days before the expiration of H-1B status, and the H-1B worker took a trip abroad for six days, it is worthwhile to request a recapture of time. In this instance, recapturing the six days makes the H-1B worker eligible for one-year incremental extensions while their labor certification or immigrant visa petition is pending.

Due to the complexities of the H-1B extension and recapturing process, employers or individuals seeking assistance with such matters should consult with knowledgeable and experienced immigration attorneys.