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Recapture of Unspent H-1B Time

Significantly, only the time that the beneficiary was physically present in the United States after lawful admission in the H-1B status, is the time that counts towards the maximum six-year period of authorized stay and not the actual H-1B approval periods. (Ref.8C.F.R.§ 214.2(h)(13)(iii)(A); Section 101(a)(13)(A) and § 214(g)(4)of the Act).

  1. This conclusion is further supported and explained by the court in Nair v. Coultice. (Ref. 162F.Supp.2d 1209 (S.D. Cal. 2001)).


  2. Recently in the Matter of IT Ascent, EAC# 0404753189 (Dated AAO September 2, 2005), the Administrative Appeals Office (AAO) reaffirmed that the six-year period of authorized of an H-1B nonimmigrant accrues only during periods when the foreign national is lawfully admitted and physically presents in the United States. (On October 18, 2005, Acting Deputy Director Robert Divine designated Matter of IT Ascent, EAC# 0404753189, as binding policy guidance upon U.S. Citizenship and Immigration Services (USCIS) (click to download the PDF file. Also see Memo)

The applicant for extension seeking to recapture time spent outside the U.S. need not demonstrate that the time spent outside the U.S. was meaningfully interruptive of his or her H-1B stay. The reason for the absence is not relevant to the question of whether the time may be recaptured. Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured.

Nonetheless, the burden of proof always lies with the petitioner and the beneficiary to establish that he/she was not present in the United States for the amount of time for which recapture is requested. The beneficiary can submit copies of his/her current and previous Form I-94s, Arrival & Departure Record, date of admission stamp pages from the beneficiary’s passport along with a detailed statement with the dates in and out to prove the number of days that he/she spent outside of the United States. Without such accompanying proof with details, the petition may not be approved by the USCIS.

Dependants’ H-4 status Extension: The status of an H-4 dependent of an H-1B nonimmigrant is subject to the same period of admission and limitations as the principal alien.

For example, if an H-1B alien is able to recapture a two-week business trip abroad for each year for five years in a row (for a total of 10 weeks), then his or her H-4 dependents, if seeking extension of stay, should be given an extension of stay up to the new expiration of the H-1B alien's stay.

Caution: The statute and regulations allow H-4 status only "if the dependents are accompanying or following to join the beneficiary in the United States." If it appears that the dependent is not using or is not intending to use H-4 status primarily to accompany or follow to join the principal H-1B alien, such as a situation in which the principal only is physically present or intends to be physically present in the United States for a small proportion of his or her period of H-1B admission and the dependents are using H-4 status to evade the limitations on or eligibility rules of the nonimmigrant options that otherwise would be available, then the H-4 extension of stay may be denied, limited or revoked on notice giving the H-4 the opportunity to provide evidence of the intention primarily to accompany the principal.