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Recapture of H-1B Time Spent Abroad

Q: Can a foreign national who has used up all six allowable years of H-1B eligibility, and is not eligible for any other provision which allows extension beyond the six years, get back or "recapture" time spent abroad to receive additional time on an H-1B?

A: Yes. U.S. Citizenship and Immigration Services has adopted as official policy a court decision which states that all time spent abroad during the approved period of a non-immigrant visa may be recaptured, and added to the end of the normally allowable non-immigrant visa period. This is true regardless of the length of each individual trip or the purpose of the trip (vacation as opposed to overseas assignment).

USCIS had historically taken the position that time spent out of the U.S. could only be recaptured if that time was interruptive of the foreign national employee's U.S. employment. In other words, if the foreign national performed a three-month assignment abroad during the six years of H-1B employment, with another employee or employees covering his or her work from the U.S. job while the person was abroad, then the foreign national could get three additional months of H-1B time.

Under this old policy, vacation time spent abroad wouldn't count as being interruptive absent a prolonged leave, and so normally couldn't be recaptured. The shift in policy changes this, which makes available for recapture all time spent abroad without regard to the purpose or length of the trip.

Only full days spent out of the US may be counted, however – the date of departure and date of return cannot be.



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.