H-1B beyond the six years: Renewal and Recapture
H-1B is an immigrant status that allows a U.S. employer to hire a foreign born worker on a temporary basis. The H-1B category is reserved for “specialty workers”, requiring an alien to possess a bachelor’s degree or something equivalent. This classification is highly sought after by professionals in computer science, engineering, academia, etc. Should an H-1B holder quit his/her position, experience a lay-off, or any form of dismissal, he or she may seek other, comparable employment or petition for a change in status.
An H-1B worker can stay in the United States for a maximum period of six years. Three years are initially allotted to an H-1B worker. Once those three years lapse, an H1-B holder can apply for an additional three year extension, to constitute the full six year limitation.
Upon reaching the six year limit, an H-1B holder can either renew H-1B status or recapture time spent outside of the U.S.
There are two exceptions to the six year limit that allow an H-1B holder to renew his/her status. Moreover, according to AC 21, renewal will not be subject to the H-1B annual quota restriction.
In the case that an H-1B holder filed either an I-140 application or Labor Certification 365 days prior to the expiration of the sixth year, and this application is still pending, the visa holder can retain his or her status. Beyond the six year limitation, this status must be renewed annually. As long as either application is pending, a visa holder can continue to keep H1-B status. There is no annual limitation on such a rule.
The second exception is if an H-1B visa holder has received I-140 approval, but visa numbers are not available as a result of backlogging, rendering the petitioner ineligible to file an I-485. An H-1B holder in this particular circumstance may renew his/her H-1B status for an extra three years until he/she can file an I-485 petition; there is no annual limitation on this rule. Unlike the first exception, there is no need for an H-1B holder in this situation to file an extension 365 days prior to H-1B expiration.
In 2005, USCIS released formal procedures for H-1B holders about how to recapture time spent abroad. In general, USCIS uses the term “recapture” to denote a procedure that an H-1B holder can take in order ensure that time spent outside of the United States of America does not count towards the six year limitation.
To give you an example, if an H-1B holder goes out of the country on vacation for one week a year for six years, this entails the visa holder to petition for a “recapture” of the six weeks spent outside of the United States.
Furthermore, if an H-1B holder reaches the six year limit and then stays outside the U. S. for over one year, he/she may reenter the U.S. with a new H-1B visa. Under the new visa, he/she may gain another six years in total. However, his/her new petition will be subject to the H-1B annual quota restriction.
In order for H-1B visa holders to “recapture” time, they must prove that their stay outside of the United States was “meaningfully interruptive” of their H-1B status. When this rule was first implemented, there was ambiguity as far as what constituted "meaningfully interruptive". As such, several H-1B recapture applications were denied. USCIS has since revised its rules regarding time recapture. Unfortunately, partial days spent abroad cannot be recaptured, even though partial days spent inside the United States count as full days. If an alien is granted additional time based on this tenant, extended H-1B status is also applicable to family members as well.
If you are interested in recapturing time, you must provide satisfactory evidence. This can be in the form of documentation like I-94 arrival/departure records, plane tickets, travel itineraries, copies of passport stamps, etc.
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