H and L Visa Holder can Recapture Time Spent outside of the US

According to American Immigration Lawyers Association (AILA), USCIS recently issued a memorandum, which stipulates that any days spent outside of the United States during the validity period of an H-1B or L-1 petition WILL NOT be counted toward the maximum period of stay in the United States in H-1B or L-1 status, provided that the alien is able to submit independent documentary evidence establishing that he or she was in fact physically outside of the United States during the day(s) for which the alien is seeking recapture.

M any inquiries from the public concern whether time spent outside of the United States during the validity period of an H-1B petition counts toward the "maximum period of time in the United States ." A common example goes like this. A Chinese national, Mr. Li got H-1B visa three years ago. Since 2002, he has been outside of the United States for three weeks each year on vacation. Can he seek to "recapture" all nine-week period spent outside the United States now in order to further extend his or her stay in H-1B status?

On October 18, 2005, Acting Deputy Director Robert Divine issued a memorandum, which provides the following decisions:

• Time spent outside the U.S. during the validity of an H-1B petition may be added back, or "recaptured" to the period of stay allowed as H-1B visa permits. The applicant only needs to demonstrate that he or she was outside of the U.S. for the period of time requested.

• The "recapture" is also applicable to the calculation of maximum periods of stay by L-1 non-immigrant visa holders.

• The spouse and minor child of a principal alien who recaptures H-1B or L-1 periods may receive periods of H-4 or L-2 stay coextensive with that of the principal alien.

(11/11/2005)

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