Immigrants to USA knows that an H1b term is valid for only 6 years. The employers of h1b visa holders needs to apply for their green card before their final year of the employees 6th year. There can be situations where your green card application gets a query or RFE, in either Labor or I-140 period and you may need more time in your application process. I was on my final year, I got into that category and I needed to buy some time before the immigration attorney can apply for an Appeal for my approved Labor application.
By US immigration USCIS law, we can recapture the time you have spent outside the US during your 6 year period / Stay in the US. The time might have spent visiting your parents in India or your home country (I spent close to 120 days in India as I was visiting every year), or even it can be a long personal time off or vacation outside USA (But still the h1b was valid and your were employed by an employer). The attorney’s will need the following documents for a successful recapture of this time :
- Exact dates of your travel outside USA
Make sure you give your immigration attorneys the exact dates of travel from USA. They should match with the below supporting documents and the dates stored in the US immigration department database. Give the dates in a good tabular format so that the attorneys can easily calculate how many days you can re-capture in your application.
- The date stamps on your passports
Every time you enter the american soil, the immigration folks (At the point of entry interview process) stamps the ‘check-in’ date on your passport. You will need to make sure you take a scan of these pages for your application – Hoping they are clearly printed.
- Your airline tickets (If needed)
Its an added option to prove your case that you left the united states and can be used for an extra proof. I was requested by my attorneys to give as additional documents. So make sure you are saving a copy (as a PDF document) of your tickets for future use – Its comes handy at this time.
- I-94 cards(If needed)
There can be cases in which the stamps in your passports are not clear – the I-94 cards comes to your help as they note the date of entry. I recommend that you scan the copies of the I-94 cards for future use. Note: You are required to submit your I-94 cards to the airline companies when you leave the country when travelling- so make sure you scan your I-94 page in your passport after you enter the country every time or from the approved i-797 approval notice .
These are some more information from USCIS on recapture time for h1b and L1 visa holders (For extra reading):
- 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.
- Because section 214(c)(2)(D) of the Act states that “the period of
authorized admission for” an L-1 nonimmigrant admitted to render services in a
managerial or executive capacity shall not exceed 7 years, or an L-1 nonimmigrant
admitted to render services in a capacity that involves specialized knowledge shall
not exceed 5 years, and because “admission” is defined as “the lawful entry of the
alien into the United States after inspection and authorization by an immigration
officer” only time spent in the United States as an L-1 counts towards the maximum.Thus, upon requesting an extension, the L-1 nonimmigrant can request that full days spent outside the U.S. during the period of petition validity be recaptured and added back to his or her total maximum period of stay. As always, it is the applicant/petitioner’s burden to demonstrate eligibility, and appropriate evidence, such as copies of passport stamps, I-94’s and/or plane tickets must be submitted.
I am so glad that I got my h1b extension by recapturing my days outside USA and got a chance to buy some more time before the next step (request for a 1 year extension for my approved labor application in Green card).
Hope this details helps. If you may have any questions, please feel free to add your question as a comment to this blog post and I can try giving you more details.