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Start →a) for Calculating Maximum Period of Stay i) Regarding the Limitations A) on Admission of H-1B Nonimmigrants. [Revised by 10/20/05, AD05-21]. USCIS officers shall comply with the following guidance a) to determine i) whether periods of time (a) spent by an H-1B nonimmigrant worker (i) in a specialty occupation (ii) outside the United States will be recaptured: (A) Periods of Time a) Outside the United States b) that May Be Recaptured i) by an H-1B Nonimmigrant Worker A) in a Specialty Occupation. 1-1) Because section 214(g)(4) a) of the Act states that a) “the period i) of authorized admission” may not exceed 6 years, and 1-2) because “admission” is defined a) as “the lawful entry i) of the alien ii) into the United States (a) after inspection and authorization (i) by an immigration officer” 2) only time a) spent i) in the United States ii) as an H-1B counts towards the maximum. Thus, upon requesting an extension, the H-1B nonimmigrant can request a) that full days i) spent A) outside the U.S. B) during the period of petition validity be i) recaptured and ii) added back to his or her total maximum period of stay. As always, it is the applicant/petitioner’s burden a) to demonstrate i) eligibility, and 1) appropriate evidence, a) such as copies of i) passport stamps ii) I-94’s, and/or iii) plane tickets must be submitted. The applicant a) for extension b) seeking to recapture time i) spent outside the U.S. 1) need not demonstrate that a) the time i) spent outside the U.S. was meaningfully interruptive i) of his or her H-1B stay. The reason a) for the absence 1) is not relevant to the question a) of whether the time may be recaptured. Any trip a) of at least one 24-hour day b) outside the U.S. c) for any purpose, i) personal or business, 1) can be recaptured. The applicant a) for extension 1) must only demonstrate a) to the satisfaction of the adjudicator b) that he or she was outside the U.S. i) for the amount of time (a) for which recapture is requested. Matter of IT Ascent, EAC# 0404753189, was designated a) as binding policy guidance b) on October 18, 2005. Officers should refer to the reasoning a) contained in this decision. (B) Evidence. The burden of proof remains a) with i) the H-1B petitioner and/or ii) the H-1B beneficiary b) to submit evidence i) documenting any and all exact periods of physical presence (a) outside the United States 1) when seeking a) an extension of petition validity and b) extension of stay i) as an H-1B nonimmigrant. a) The petitioner and/or b) beneficiary 1) are clearly in the best position a) to organize and submit evidence i) of the beneficiary’s (a) departures from and (b) reentry into the United States. While petitioners often submit a) a summary and/or b) charts i) of travel and c) the number or days i) spent out of the United States, ii) which eases review (a) of the accompanying documentation, 1) petitioners are also required a) to submit independent documentary evidence i) establishing that (a) the alien was outside of the United States (i) during all the days, weeks, months etc. (A) that he or she seeks to recapture ii) (e.g., photocopies of (a) passport stamps and/or (b) Form I-94 arrival- departure records). The fact a) that the burden i) may not be met (a) for some claimed periods, or ii) has been met (a) for some claimed periods, 1) has no bearing a) on the remaining claimed periods. Any periods of time a) for which the burden has been met 1) may be added a) to the eligible period of admission b) upon approval of the application for extension of status. An alien may not be granted an extension of stay a) for periods of time i) that are not supported (a) by independent documentary evidence. A Request for Evidence should not be sent to the petitioner a) for any claimed periods i) unsupported by evidence. In some instances, the alien may not be granted the entire period of time a) requested 1) because the evidence a) submitted does not establish eligibility a) for the entire period of stay requested. In those situations, the approval notice should be issued a) for the period of time i) for which eligibility has been demonstrated. The status a) of an H-4 dependent i) of an H-1B nonimmigrant 1) is subject to the same period of a) admission and b) limitations i) as the principal alien. For example, if an H-1B alien is able a) to recapture a two-week business trip abroad i) for each year ii) for five years in a row (a) (for a total of 10 weeks), 1) then his or her H-4 dependents, a) if seeking extension of stay, b) should be given an extension of stay i) up to the new expiration (a) of the H-1B alien’s stay. The statute and regulations allow H-4 status 1) only “if [the dependents] are a) accompanying or b) following to join the beneficiary in the United States.” If it appears that a) the dependent i) is not using or ii) is not intending to use A) H-4 status B) primarily I) to accompany or II) follow to join (a) the principal H-1B alien, b) such as a situation in which i) the principal only (a) is I) physically II) present or (b) intends to be I) physically II) present (a) in the United States (b) for a small proportion (i) of his or her period of H-1B admission and ii) the dependents are using H-4 status A) to evade I) the limitations on or II) eligibility rules of (a) the nonimmigrant options (b) that otherwise would be available, 1) then the H-4 extension of stay may be a) denied, b) limited or c) revoked i) on notice A) giving the H-4 the opportunity I) to provide evidence (a) of the intention (i) primarily to accompany the principal. Officers a) involved in the adjudication i) of H-1B petitions 1) are cautioned a) that the examples i) provided in this memorandum are not all inclusive. Situations may develop a) of certain petitions, b) which will require the adjudicating office i) to use discretion. Therefore, decisions a) on petitions for extension b) concerning this issue i) that contain unique or novel circumstances 1) may be certified a) to the Administrative Appeals Office for review. (10) Requests for an extension of H-1B status a) under the provisions of AC21 §104(c) b) for aliens i) subject to per country visa limitations. [Revised by 5/30/08, AD08-06]. USCIS interprets AC21 §104(c) a) as only applicable i) when an alien, A) who is the beneficiary I) of an approved I-140 petition, is eligible to be granted lawful permanent resident status A) but for application I) of the per country limitations. Any petitioner a) seeking an H-1B extension i) on behalf of an H-1B alien beneficiary ii) pursuant to §104(c) of AC21 1) must thus establish that a) at the time of i) filing for such extension, b) the alien is not eligible i) to be granted lawful permanent resident status ii) on account of A) the per country immigrant visa limitations. USCIS will accept a copy a) of the H-1B alien beneficiary’s Form I-140 petition approval notice i) which shows that (a) an immigrant visa is not I) immediately II) available to him or her (a) based on the approved petition’s priority date b) as evidence i) of the H-1B alien beneficiary’s eligibility (a) for an extension of H-1B status (b) under the provisions of §104(c) of AC21. Adjudicators are instructed a) to review the Department of State Immigrant Visa Bulletin i) that was in effect (a) at the time of I) the filing of the Form I-129 petition (a) in which a request (i) for an §104(c) of AC21 H-1B extension request is made. If the H-1B alien beneficiary is shown a) to be ineligible to be granted lawful permanent resident status i) because of the per country visa limitations, 1) then the H-1B extension request a) under the provisions of §104(c) of AC21 may be granted a) for a maximum of three year increments, b) until such time as i) the alien’s application A) for adjustment of status has been processed and ii) a decision made thereupon. (11) H-1B Portability Provisions of INA §214(n), AC21 §105. [Revised by 5/30/08, AD08-06]. INA §214(n), provides that a) a nonimmigrant i) who was previously (a) issued an H-1B visa or (b) provided H-1B nonimmigrant status may begin working i) for a new H-1B employer b) as soon as that new employer files a nonfrivolous H-1B petition i) on the nonimmigrant’s behalf, c) if: i) The nonimmigrant was A) lawfully B) admitted to the United States; ii) The nonfrivolous petition (a) for new employment ← End
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