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Recapture of H-1B Time Spent Abroad

Q: Can a foreign national who has used up all six allowable years of H-1B eligibility, and is not eligible for any other provision which allows extension beyond the six years, get back or "recapture" time spent abroad to receive additional time on an H-1B?

A: Yes. U.S. Citizenship and Immigration Services has adopted as official policy a court decision which states that all time spent abroad during the approved period of a non-immigrant visa may be recaptured, and added to the end of the normally allowable non-immigrant visa period.

USCIS had historically taken the position that time spent out of the U.S. could only be recaptured if that time was "meaningfully interruptive" of the foreign national employee's U.S. employment. In other words, if the foreign national performed a three-month assignment abroad during the six years of H-1B employment, with another employee or employees covering his or her work from the U.S. job while the person was abroad, then the foreign national could get three additional months of H-1B time.

Under this old policy, vacation time spent abroad wouldn't count as being interruptive absent a prolonged leave, and so normally couldn't be recaptured. The shift in policy changes this, which makes available for recapture all time spent abroad without regard to the purpose or length of the trip.

Q: What are the strategic implications of recapture?

A: Recapture can be an extremely helpful tool. Often, for whatever reason, the green card process was not started a full 365 days in advance in advance of the end of the original six-year H-1B term before recapture is considered. If the gap is only a month or two, two-week-per-year vacations in the home country each year over the course of the six years would alone represent almost three additional months This would be enough, in this situation, to gain eligibility for the post-sixth year H-1B extensions needed to keep the person here in the U.S. and employed until the green card comes through.

Perhaps, though, the gap is more than can be overcome by time spent abroad to date - an employer waits almost until the last minute to begin a green card case, but still needs post-sixth-year eligibility. Intentionally placing the employee on overseas assignment, or perhaps on leave overseas, becomes a strategic tool to push the 365-day look-back period forward.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.