Recapture of Time Abroad to Extend Nonimmigrant Status
Originally posted on MurthyDotCom 03.Mar.2006, this article has been updated for our readers.
The law limits the amount of time an individual is permitted to remain in the United States in H1B or L-1 status. However, the U.S. Citizenship and Immigration Services (USCIS) permits a person in H1B or L-1 status to recapture time spent outside the United States during the course of stay. When filing a petition to extend the relevant nonimmigrant status, a petitioner may request that the period of time a beneficiary spent abroad be added to the end the individual's status period. This option can be a key component of an overall immigration strategy.
To request a recapture of the time spent abroad, the USCIS requires that the foreign national provide evidence of his/her absence from the United States during the claimed trips. Discussed here are the types of evidence that may help in making a stronger case with the USCIS for recapturing time spent abroad, as well as recapture-related strategies.
Passport Stamp and Other Proof of Travel Evidence
The best proof of travel is typically the arrival stamps in one's passport. Copies of the relevant stamps in the passport should be included with any recapture request. However, an individual who travels frequently is likely to have a passport with many stamps, each on top of the other, in no discernible order. Therefore, one may wish to make a copy of the stamp once it is entered into the passport, before it is covered by another stamp. Copies of the old passport should be made before it is surrendered for renewal. If one is from a country that does not require the surrender of the old passport, expired passports should be kept in a safe place.
Still, in some instances, the passport stamps may be illegible. It is often safer, therefore, to supplement this proof of travel. In such cases, the USCIS will accept other credible evidence, such as the plane ticket with the travel dates clearly indicated, dated receipts from hotel stays, and/or other charges on the credit card with travel costs or purchases. A printout of one's travel history can sometimes be obtained if one is in a frequent-flyer program. An individual traveling on business may have an itinerary from his/her employer. In 2013, the U.S. Customs and Border Protection (CBP) shifted to electronic issuance of I-94 arrival / departure records. Thus, many travel records are available online. These records can be extremely helpful when making a recapture request.
Recapture and Extensions of H1B Status Under AC21
H1B foreign nationals who have used most or all of their allotted six-year period are eligible for additional extensions under the American Competitiveness in the Twenty-First Century Act (AC21). The AC21 H1B extension provisions are tied to the timing of the initiation of an employment-based permanent residence (commonly, green card) filing for an individual. Thus, The recapture provisions are often helpful to facilitate eligibility for such extensions.
Most commonly, this interplay of AC21 extensions of H1B and recapture applies when utilizing what is sometimes called the 365-day rule. Under this rule, a foreign national is eligible for a one-year H1B extension if s/he is the beneficiary of a labor certification (or an I-140 petition if a labor certification is not required) filed at least 365 days prior to the expiration of his/her sixth year in H1B status.
For various reasons, PERM labor certification is sometimes filed when the foreign national has less than one year remaining in H1B status. If recapture time is available, that may provide an easy solution. However, if there is not enough recapture time, there may still be an option. In such cases, it becomes necessary to carefully plan additional international travel. This travel extends the end of the six-year duration and, thus, provides a route for eligibility for H1B extensions under AC21.
A foreign national's six years of H1B time ends May 14, 2016. His company filed a PERM LC on his behalf on May 20, 2015. The PERM received an audit and is not likely to be approved in time to file and obtain approval of the form I-140. Thus, the foreign national's six years will end before her/his labor certification will have been pending for at least 365 days, and he/she will not have a way to extend the H1B status.
To resolve this problem, the individual can plan additional travel abroad so that s/he will have enough recapture time available to bridge the gap between the six-year expiration and the 365-day point. With such a short amount of time needed, this situation could be resolved by simply taking two long weekends to Canada, Mexico, or a nearby non-U.S. island. Once this has been done, the employer could file an H1B extension to extend the status for recapture time, plus one additional year under AC21.
While this strategy may seem straightforward, there are a lot of variations and nuances that can drastically affect one's case. The attorneys at the Murthy Law Firm have seen all types of variations of such situations and have been successful in helping individuals plan ahead to ensure eligibility under AC21.
Helpful to Provide USCIS a Chart of Entry and Exit Dates
Most often, the USCIS will not issue a request for evidence (RFE) to prove that a person is entitled to recapture time abroad. The USCIS will decide based simply on the information provided initially. Thus, if multiple trips are involved, it is important to provide a clear chart of one's U.S. entry and exit dates, and detailed, clear documentation of each date of entry from abroad.
Since it is possible to recapture all days spent abroad, those in H1B or L-1 status should keep proof of their travel organized and in a safe place. In most situations, the recaptured time is requested at the end of the allowable H or L stay. Therefore, it is often necessary to gather documentation accumulated over five or more years. Most people do not have a reason to retain their airline tickets so long after travel. Those who may need to take advantage of the recapture provision need to carefully retain this type of documentation. The ability to recapture time spent abroad can be an invaluable asset in one's overall immigration strategy.
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