AAO Allows Recapturing H1B Time Abroad
Posted Sep 09, 2005
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The Administrative Appeals Office (AAO) issued a decision on August 22, 2005 that permits a person who was out of the country several days at a time to recapture those days and obtain an extension of H1B status. The Director of the Texas Service Center (TSC) had initially decided that the H1B extension should not be granted. The Director reasoned that the travel was not "meaningfully interruptive" of the beneficiary's H1B employment and was similar to weekends and vacations. The USCIS has generally applied a "meaningfully interruptive" standard, although that wording is not contained in the law itself.
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Recent Prior Case at CSC with Similar AAO Ruling
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The AAO disagreed with the analysis of the TSC. This is the second case in the last few months in which the AAO has made such a finding. The earlier case involved an H1B denial at the California Service Center (CSC). The AAO's reasoning, described below, was similar in both cases.
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AAO Allows Recapturing Absence of Even a Few Days
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The AAO recognized that a person is only in H1B status when s/he has been lawfully admitted into the United States in that status. When one leaves the country, s/he is no longer in an H1B status in the U.S. Each time the individual travels abroad and reenters lawfully, s/he reenters in a lawful H1B status. Often, this is the same status that the person had before departing the country. For example, if an individual in H1B status leaves the U.S. for 3 days, s/he is not in H1B status during those three days. If qualified, however, the person may reenter the United States after the three-day visit and resume H1B status by obtaining a new I-94 card with H1B status at the port of entry.
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Since any period spent outside of the U.S. is time one is not in H1B status in the U.S., the AAO accepts that a person who has been in H1B status, but has had period/s of absence, has not used the full 6 years of H1B status. Such an individual, therefore, may be granted an extension of H1B status to cover days s/he spent outside the U.S.
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When to File to Recapture H1B Time
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Recapturing is often used by those who have been outside the United States for several months during the six-year H1B limitation period. It is cost-effective to ask for the recaptured time in such cases. Sometimes, however, it may be desirable to request a recapture of H1B status time even if there is only a week or less available. If, for instance, one's employer filed a labor certification (LC) 362 days before the person's H1B status was set to expire and that individual took a 4-day trip outside the U.S., it would be worthwhile to request a recapture. In this way, the person could be eligible for one-year incremental extensions of H1B status while the green card case progressed. There are many situations in which a few weeks, or even days, of extra H1B time could be helpful to a long-term immigration strategy. Most often, one should be able to file the H1B extension with the balance of time left in the six years and then tack on the one-year incremental extension allowed under AC21, based on the LC or I-140 filing at least 365 days earlier.
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Service Centers May Still Deny Recapture Time
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Even though the AAO has issued two favorable decisions, the USCIS Service Centers may still attempt to deny some H1B recapture cases by using the "meaningfully interruptive" standard. In those instances, it appears that filing a Motion to Reopen or Reconsider may produce a favorable result, but it may cause delays in receiving a final favorable outcome. Due to this uncertainty, we at The Law Office of Sheela Murthy do not recommend relying upon recapture of brief trips abroad in one's immigration strategy. This type of recapture request may be more likely to be approved, given these recent AAO decisions. However, it is still best to plan the filing of the green card case so that recapture is not necessary, and reserving the use of recapture for those situations where other avenues are not available or when that extra time is needed.
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Cannot Stay Beyond the Time of the Recapture Request
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One should not stay in the United States beyond the period requested on the H1B extension. This is true even if a decision has not been issued on the H1B extension request, if one has no other legal permission to remain in the U.S. If, for example, a recapture request is for two additional weeks, and the petition has not been approved by the end of the date requested, that person should plan to depart the U.S. Otherwise, even if the H1B petition is approved, one would begin accruing unlawful presence from the date after the expiration of the requested H1B validity date.
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Partial Days in the U.S. Cannot be Recaptured
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Any part of a day spent in the United States in H1B status generally is considered a full day in H1B status. Therefore, the day one departs and the day s/he returns to the U.S. cannot be recaptured. The general rule is where the person spends the night, but it is safest not to count either day during travel.
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Conclusion
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Recapturing is a useful tool for a person who has any period of travel outside the United States during the six years in H1B status. As with all aspects of immigration law, however, it is best to seek the advice of an experienced immigration attorney to work through the complexities of the H1B recapturing process, toward one's long-term goals, ensuring a cost-effective solution.
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