Recapturing Time in H-1B Status
Recapturing H-1B Time Spent Outside the United States
As a general principle, days spent outside of the United States during the validity period of an H-1B petition will not be counted toward the 6-year maximum period of stay in the United States in H-1B status. When a beneficiary applies for an extension of stay, days spent outside the United States can be "recaptured and added back to his or her total maximum period of stay," provided those absences are properly documented. USCIS memo by Michael Aytes (October 21, 2005).
This policy is based on USCIS adopting as binding policy guidance the unpublished AAO decision Matter of IT Ascent, EAC 04 047 53189 (September 2, 20005). The AAO held that when an employee is outside the United States, he or she is technically not in any status for U.S. immigration purposes. And so, if absences (even non-business-related absences) from the United States can be adequately documented, the time spent outside the U.S. can be "recaptured" at the time an extension of stay is requested. "Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured."
Detailed documentation that independently corroborates the time spent outside the United States must be presented when filing an I-129 petition that claims recapture time.
(B) Evidence. The burden of proof remains with the H-1B petitioner and/or the H-1B beneficiary to submit evidence documenting any and all exact periods of physical presence outside the United States when seeking an extension of petition validity and extension of stay as an H-1B nonimmigrant. The petitioner and/or beneficiary are clearly in the best position to organize and submit evidence of the beneficiary's departures from and reentry into the United States. While petitioners often submit a summary and/or charts of travel and the number or days spent out of the United States, which eases review of the accompanying documentation, petitioners are also required to submit independent documentary evidence establishing that the alien was outside of the United States during all the days, weeks, months etc. that he or she seeks to recapture (e.g. photocopies of passport stamps and/or Form I-94 arrival-departure records).
The more clearly the documentation supports any summary statement, the better. Any periods of absence that are claimed, but not corroborated by documentation, will not be counted. For example, if a petitioner claims that the beneficiary was absent for a total of six months, but only has documentation corroborating 4 months, USCIS will only grant 4 months of "recaptured" time.