Recapture of H-1 and L-1 Time Abroad
Posted Nov 11, 2005
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The U.S. Citizenship and Immigration Services (USCIS) issued a memorandum on October 21, 2005 setting forth the procedures for calculating the maximum period of stay allowed for H1B and L-1 nonimmigrants. This Memo addresses only issues pertaining to the recapture of time spent abroad. It in no way addresses or alters the H1B extensions beyond the six-year limitation that are commonly referred to as seventh-year extensions. The Memo, in simple terms, allows for persons in H1B and L-1 to recapture each day that they spend abroad during the standard H1B and L-1 duration.
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More Liberal Standard
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Under the recent change in USCIS policy allowing for recapture of any time spent abroad, if a person on H1B spends two weeks outside of the U.S. on vacation each year during the six-year H1B period, that person can request, and should receive, twelve additional weeks of H1B time. The earlier policy of only allowing recapture for meaningful interruptions is no longer applicable. This is a significant change and will be beneficial to many people. This Memo is the result of a recent Administrative Appeals Office (AAO) decision, Matter of IT Ascent, which was designated as binding USCIS policy. This general trend away from the "meaningfully interruptive" standard has was covered in our recent MurthyBulletin articles, AAO Allows Recapturing H1B Time Abroad (September 9, 2005), and VSC Update: September 2005 (October 28, 2005), available on MurthyDotCom.
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H1Bs and L-1s Affected
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While the AAO decision pertained to H1Bs, the Memo applies the same principle to L-1s. The reason for this is that the same terminology interpreted by the AAO for H1Bs also appears in the L-1 regulations. Thus, the logic is the same for both categories. Of course, L-1s must be mindful of the fact that L1As have a seven-year period of permitted extension; L1Bs have a maximum five-year period of admission. Additionally, while the recapture provisions apply equally to H1Bs and L-1s, the special AC21 provisions for extending H1Bs beyond their six-year limitation do not apply to L-1 extensions beyond the seven- or five-year term.
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Family Members Enjoy Similar Benefit
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Under the terms of the Memo, dependent family members, who would hold H-4 or L-2 status, will be able to extend their statuses for the additional time granted to the primary applicant. There was no mention of the need for the H-4 or L-2 to also travel abroad. Thus, it seems that the H-4 or L-2 could remain in the U.S. while the primary is abroad on a business trip, yet be able to extend his or her status with the H1B or L-1 primary spouse. It is unclear, however, if the USCIS will interpret the Memo in this way.
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Evidence Required for Time Spent Abroad
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A person claiming recapture needs to be prepared to document the time spent abroad. The Memo lists appropriate evidence as being passport stamps, I-94s, and/or plane tickets. Consequently, one should keep such evidence in a safe place, as it may be needed many years hence.
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Examples of Beneficial Application of Liberal Policy
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There are times when a few extra weeks or even days can make a world of difference in an immigration case. There are numerous examples. The most common scenario that we see is one in which an individual has a labor certification that was filed just short of qualifying that person for an H1B extension under the 365-day provisions. That is, one can extend the H1B status beyond the six-year limit IF the initial step in the employment-based green card case was filed at least 365 days earlier. At The Law Office of Sheela Murthy, we see many cases where the labor certification was filed within a few days or weeks of the 365-day point. If these people can recapture even a few weeks of vacation time spent abroad, they may well have a way of extending their H1Bs while waiting for their green card cases to progress through the system. Otherwise, if there are no other options available, they may have to leave the country for at least a year. Similar cases would be those for which labor certifications were filed long ago, but either the companies went out of business or the cases ran into problems at a later stage. Sometimes it is possible for such individuals to find employers to re-file the labor certifications, but there may not be a full 365 days left of the six-year H1B. Often, recapture of all time spent abroad can save the day!
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Conclusion
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We at The Law Office of Sheela Murthy appreciate the designation of the AAO decision as binding on the USCIS and the Memo's detailed specifications of the nature of evidence to be presented. As indicated here, the USCIS’s liberal policy will provide benefits to many. Additionally, it provides a clear, bright line rule that should be easy to follow. In the past, there was a great deal of uncertainty as to whether time spent abroad would be regarded as meaningfully interruptive. The standard was interpreted and applied inconsistently from case to case. The new interpretation is simple and clear and will be beneficial to many.