“Recapturing” Unused Time
H-1B status is approved initially for a period of up to three years. It can then be renewed for up to another three years. Thus, the usual duration of an H-1B worker's stay in the United States is a maximum of six years. After six years, generally speaking, H-1B beneficiaries must depart the U.S. for at least one year before qualifying again for H-1B status.
What if an H-1B worker hasn’t spent six consecutive years in the U.S. under valid H-1B status?
“Recapturing”
Because only time spent inside the United States is counted against your six-year limit, you can “recapture” time spent outside of the country and thereby extend the length of time you can stay in the U.S. in H-1B status. This means that you can add full days (not partial days) spent outside the U.S. during the validity of your H-1B status back to your total maximum stay of six years.
To this end, H-1B holders may apply to “recapture” time spent outside of the U.S., which will allow them to potentially extend their stay in the country. (Additionally, H-1B holders may in certain limited circumstances extend the duration of their H-1B status beyond the six-year limit if they are petitioning for immigrant status through the green card application process. Read more about such extensions in our article here.)
If you are successful in recapturing time abroad and extending your stay, your family members (i.e. H-4 dependents) will also be entitled to extend their stay.
Let’s look at a real-world scenario.
Barbara is an H-1B beneficiary at Bar-None (her sponsoring employer), a company manufacturing high-tech equipment for barbers. Barbara returns to her home country, Barbados, one week a year for each of the six years she has H-1B status. Luckily, Barbara can petition to recapture the six weeks in total she spent outside of the United States. If approved, she will be allowed to continue working for Bar-None for another six weeks after the six-year anniversary of receiving H-1B status. Barbara will still be in valid H-1B status, even though her status began more than the maximum six years ago.
Unfortunately, however, partial days spent abroad cannot be recaptured. So if Barbara embarks for Barbados on January 1st, spends seven days there, and returns to the U.S. on January 9, she can only petition to recapture the seven full days she was abroad, not the two days she was traveling.
Plus, since Barbara’s husband Bart is her H-4 dependent, he is also eligible to extend his status by as much as Barbara does.
Process
If you are interested in recapturing time spent abroad while in valid H-1B status, you have the burden of proof. To this end, you must submit satisfactory evidence to U.S. Citizenship and Immigration Services (USCIS), which can take the form of, for example, I-94 arrival/departure records, plane tickets, travel itineraries, and/or copies of passport stamps.
Note that USCIS does not automatically take into account H-1B workers’ time abroad. H-1B holders are required to petition USCIS if they want to recapture and extend their stay.
For additional information on this process, refer to a memo released by the American Immigration Lawyers Association titled “AILA/VSC Practice Pointer: Proof for Recapture of Unused H-1B Visa Validity,” the text of which you can read here. (AILA InfoNet Doc. No. 09100210, posted Oct. 2, 2009).
The broadly applicable upshot here is that you should never completely rely on any organization or body to make sure that your records are accurate. You should always keep important information filed away in the event that something does go wrong.
The information on this page is sourced largely from a USCIS memo establishing formal guidelines issued in 2005. You can read that memo in full here.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
Updated 05/08/2017