H1b recapture time procedure explained

h1b-L1-Visa-recapture-time

H1b recapture time procedure explained

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.

14 thoughts on “H1b recapture time procedure explained

  1. Hardik

    Ratish,

    I am in the same situation right now. Can you please guide me through?
    My H1B expires on 30th Sept 2014. My company filed my PERM on 22nd Oct 2013. In my case my application was delayed by 22 days.
    If I have travel out side USA for 23-24 days, can I fall under 365 days category, and file for H1B extension without I-140 approved?
    Or still I need to get I-140 approved before filing my H1B extension?

    Thanks.

  2. Ratish Naroor Post author

    Hi Hari,

    I am making a few assumptions here before I answer your questions – I am assuming that you have traveled only 24 days in your entire last 6 years tenure of your h1b – If yes, then yes you can apply for extending your visa for those 24 days. Not sure how much the extra 24 days will help you here but totally depends on your PERM processing – Please find the current processing times at https://icert.doleta.gov/#fragment-2 .
    Anyways make sure you get your questions answered by your Attorney who can give you a final recommendations on your next steps.

    Thanks,
    Ratish

  3. Anuj

    Hi Ratish,

    First of all Thank you for detailed post on the issue.

    I am on same boat and need some guidance, here are my questions :
    1. Can you please let me know how much time it generally takes for the extension (recapture) to get approved.
    2. How does it work for dependent H4 visas after recapture is done.

    Thanks,
    Anuj

  4. Ratish Naroor Post author

    Hi Anuj,

    Please find my answers below :

    1. The recapture extension is same as a normal h1b extension – So the re-capture h1b extension done on premium processing will take 15 days and a normal application will be 2-3 months.You can decide with your HR and attorney on how many days you have pending on your current h1b tenure and decide which option to go for. I had always convinced them to do premium (Will cost them extra $1500).
    2. She will totally depend on your h1 expiry date. If your h1b is ending on july15th 2014 , hers will also be ending on the same day (Check her I94). If you get your h1b extended (With a recapture method), you will need to send h4 visa extension with your updated visa dates to USCIS and get it approved. If you got a 4 month recapture extension, she can also request for the same period and be with you. I would recommend you plan everything better so that you have enough time for her extension application too – Making sure her status never becomes illegal.

    Thanks,
    Ratish

  5. Bhaskar Dey

    Hi Ritesh:

    First Thanks for your post. I’m in a situation need some advice from you. My Sixth years kicks on 29th July 2014 and my PERM processing is getting delayed. I need to have more time before I File Labor application. I spent two months outside USA in 1012. Now can I file the recapture application around July 30th do you think or it is too early? I’m not sure what could be earliest we can apply for recapture. Is there a certain time we cannot apply it before?

    Thanks,
    Bhaskar

  6. Ratish Naroor Post author

    Hi Vashi,

    I am not sure whether I got your questions right but let me try answering it. Most of the time you request for time re-capture when you are almost done with the 6 year tenure of an H1b. Totally depends on each one’s case but you won’t use it if you already have time remaining on your 6 years of total h1b tenure.

    Ratish

  7. Claw

    Hi Ratish. Thank you for wonderful post. I am currently in last year of my h1b. Unfortunately my i140 NIW was filed a week ago and I have only 5 months left on my h1b. I am expecting atleast 6-7 months proceeding time in my i140.
    I have been outside USA For around 12 weeks during my h1b and planning to recapture those days till my i140 gets approved.
    The question for you is:
    1. Can I apply for recapture time with premium processing?
    2. Does my employer have to pay for the process or can I pay it?

    Thanks in advance.

  8. Ratish Naroor Post author

    Hi Claw,

    Answering your two questions here, ( Hoping that you have completed 6 years of you h1b stay in the US – if not, you can extend the visa till it reaches 6 years):

    1. Yes you can apply it in premium processing as like a normal h1b extension filing. As you know the application cost is expensive and I guess its close to $3500 (Not including the attorney fees).If you don’t do it in premium processing, you will still be considered legal in the country post visa expiration as you are awaiting USCIS approval/decision. Many don’t do it in premium as they can stay for more than 2-3 months as the processing takes time (If they worry for application denial).
    2) I am not sure whether you can pay for the processing as it has to come from employer account. Some Desi-companies try to get the money back from the employees as cash/in some other terms as they can’t take it from the pay check (They have to be paying the h1b monthly/bi-weekly to be their employer). Established companies will never accept any form of payments from employers for immigration expenses- You should just try to convince them to do premium and many a times they understand that.

  9. Vicky

    Hi

    My H1B petition is till 30 sep 2015 and I am in usa.
    If I do premium processing now (say 1 apr 2015) will my H1 validity be given taking by prev validity Period(30 sep) or it will be considered differently.
    say if i get for 1 year it should be 30 sep 2016 or 30 apr2016(say 30 apr 2015 is the approval date)

  10. Yaya

    Hi Ratish,

    First thank you for your wonderful post.
    Do you have an idea as to how long it usually takes for USCIS to approve H4
    ‘s recapture time, after H1B gets his/hers approved?

    Thanks,
    Yaya

  11. Ratish Naroor Post author

    Hi Yaya,

    Just so that we are on the same page – There is no concept called ‘H4 re-capture’ – A H4 is just dependent on the H1b and the time re-captured on H1b will help you to claim the same time for your H4 renewal or extension.

    So as soon as your husband get the new approval h1B notice, you can submit the new H4 extension and it will take its usual time (I guess its like 2-3 months). The good thing is that you will be legal in the country as soon you get the receipt notice of the application you submitted at the USCIS (Which is usually two-three of your package reaching their office and getting opened). So even, if your h4 approval takes any number of months, you are still legal to stay in the country (You don’t have to rely on your old h4 expiry date on the approval notice). Just make sure you have the right documents attached for your extension/renewal.

    Hope this helps,
    Ratish

  12. Ratish Naroor Post author

    Hi Vicky,

    I am thinking that you are not re-capturing your time but doing the usual 1 year extension of H1b (Unless you have 1 year time to re-capture which is an unrealistic case). In my case, when I applied for my 1 year extension, it was from the day the application was approved. In this example, it won’t be 30 September 2015 but till 30 April 2016.

    Hope it helps,
    Ratish

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