H-1B Recapturing Time Spent Outside of the U.S.

H-1B Duration and Limits

By law, the maximum duration of stay in any H status is six years.  As a result, if a foreign employee held one or more kinds of H status, or held L status, then the total period spent in the U.S. in all of these statuses are added together to determine how much time towards the six-year maximum remains available.

There are some limited exceptions which allows an H-1B worker to extend his or her status past the six-year maximum.   If the foreign worker’s work in the United States is seasonal or intermittent in nature, or if he or she spends six months or less per year in the U.S., then the six year limit does not apply.  More notably for H-1B workers, the foreign worker can apply for one-year incremental extensions of H-1B status if he or she has remained in status and has had a labor certification or I-140 pending for 365 days or more.  Similarly, H-1B status can be extended by three years if the employee has a I-140 approved on his or her behalf.

Recapture of Time Spent Outside

The regulations’ limit on H status to six years refers to time spent in the U.S. on H status.  As a result, time spent outside of the U.S. does not count against the six-year maximum and can be added to the validity of the H-1B petition in a process referred to as “recapture.”

There are many circumstances in which a foreign worker needs to extend his or her H-1B petition past the sixth year validity.  Often such recapture is the only way an H-1B employee can bridge the gap and become entitled to the 1- or 3-year H-1B extensions described above.

Our office handles an increasing number of H-1B recapture of time petitions.  In almost all H-1B recapture cases, the main issue is providing sufficient evidence to show that the H-1B worker was outside of the U.S. between certain dates.

Types of Evidence to Show Time Spent Outside of the U.S.

The Department of Homeland Security has an electronic system for tracking entries and exits of foreign nationals.  Unfortunately, this system is not very reliable and any request for H-1B time recapture should be submitted with clear evidence establishing that the foreign national was outside of the U.S.

The best evidence is copies of I-94 cards and passport entry/exit stamps.  However, not many people remember to make a copy of their I-94 card or passport once they enter the U.S. or when they have to surrender  their passport when obtaining a renewal passport.  We always encourage our clients to make good clear copies of passports, I-94 cards and entry/exit stamps every few months or after international trips.

If I-94 cards and/or border entry/exit stamps are not available, the government can accept any credible documents  showing that the foreign national was abroad.  Such documents can be flight tickets (or paperless ticket confirmations), hotel itineraries, or frequent flier mile statements.