H-1B recapture

The H-1B Visa is designated for professionals in occupations that require a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation and the application of that specialized knowledge. In general, the H-1B visa is issued for two 3-year time periods for a maximum of 6-years. We discuss how to recapture time on an H-1B visa to go beyond 6-years.

How long can you hold H-1B status?

An H-1B visa holder can be admitted for up to 3-years at a time. Stay in H-1B status can be extended up to one time for a maximum of 6-years. It is possible however to extend beyond the 6-year limit by re-capturing any time that the H-1B visa holder was not physically present inside the United States under H-1B status.

What time can be recaptured for H-1B visa purposes?

Any time spent physically outside the United States over a 24-hour period while under H-1B visa status, does not count against the 6-year maximum. Any qualifying time spent outside the United States can be recaptured at any time before the H-1B visa holder reaches the full 6-year maximum.

How do you calculate the time that can be recaptured?

The burden is on the petitioner to prove any time that can be recaptured toward the H-1B visa stay. It is important to provide as much evidence to support the recapture as possible. Simply stating the employee was outside the United States without supporting evidence is not sufficient. Evidence to support stays outside the United States can include:

  • Passport stamps
  • Arrival-Departure Records (Form I-94)
  • Airline tickets
  • Any other evidence showing presence outside the United States over 24 hours

How do you present the time for recapture?

USCIS prefers the time to be recaptured to be clearly indicated on a chart that includes the dates spend outside the United States, and the total days to be recaptured. The recapture chart should clearly indicate the dates spent outside of the United States and be supported by any documentary evidence to support the recapture. USCSIS has the discretion to approve all, part, or none of the recapture requests.

What if the beneficiary has been outside the United States for more than 1 year?

If the beneficiary was previously counted toward the H-1B numerical cap, the beneficiary will not be subject to the H-1B cap as long as they can prove time to recapture. Stays outside the United States for 1 year or more will not impact the beneficiary’s ability to recapture any unused portion of the 6-year H-1B maximum and they are not required to re-enter the H-1B lottery.

If you are in H-1B visa status you should carefully document any periods of stay outside the United States of 24 hours or more so that you are able to recapture those dates in the future. If you do not document qualifying stays outside the United States you may lose the opportunity to recapture the time towards your stay in H-1B visa status.

H-1B Visas for Specialty Occupations

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