Capturing prior unused H1B time

[vizcard]

Hypothetical question -
It is fairly common knowledge that you can recapture time spent abroad (vacations, business travel, etc) to extend your H1B. What is the logic behind that? More importantly can that logic be used in an EAD/AP scenario.

So here's the hypothetical scenario -
I have a H1 and EAD/AP. I leave the country on H1 status and enter the country on AP so I'm technically out of H1 status. If the 485 is denied, can the time spent as a parolee count towards extending the H1 even if I'm in the country?

I know it doesn't make sense but being able to extend just coz I took a vacation abroad doesn't make sense either.

[Spectator]

Hypothetical question -
It is fairly common knowledge that you can recapture time spent abroad (vacations, business travel, etc) to extend your H1B. What is the logic behind that? More importantly can that logic be used in an EAD/AP scenario.

So here's the hypothetical scenario -
I have a H1 and EAD/AP. I leave the country on H1 status and enter the country on AP so I'm technically out of H1 status. If the 485 is denied, can the time spent as a parolee count towards extending the H1 even if I'm in the country?

I know it doesn't make sense but being able to extend just coz I took a vacation abroad doesn't make sense either.vizcard,

My thoughts.

The logic is that the law allows a maximum of 6 years in H1B STATUS.

You can only be in status while physically present in the USA. Status is lost when the person departs the USA and surrenders their I-94. Status only resumes when the person is admitted to the USA in H1B status again.

Since an entry as a Parolee is not an admittance in H1B status, I don't see why time spent in the USA as a Parolee would count towards the maximum 6 years allowed.

Had you been admitted in H4 status, that time would not have counted towards the 6 year limit.

I think there is a Memo laying out the thought process - I'll try to find it and add the link to the post.

Edit:- I can't find that Memo. In the Memo that decoupled time spent in H4 status from counting against the H1B limit, USCIS said:


USCIS finds this approach most consistent with the statutory framework, which allows eligible aliens to obtain a full six-year admission period as an H-1B alien.

[itsmusa]

Spec - is this that memo you are referring to?

http://rbhs.rutgers.edu/internationalservices/immigration_updates/documents/uscis_memo_on_h-1b_eligibility.pdf

[gcq]

Hypothetical question -
It is fairly common knowledge that you can recapture time spent abroad (vacations, business travel, etc) to extend your H1B. What is the logic behind that? More importantly can that logic be used in an EAD/AP scenario.

So here's the hypothetical scenario -
I have a H1 and EAD/AP. I leave the country on H1 status and enter the country on AP so I'm technically out of H1 status. If the 485 is denied, can the time spent as a parolee count towards extending the H1 even if I'm in the country?

I know it doesn't make sense but being able to extend just coz I took a vacation abroad doesn't make sense either.

Related:
While you continue as a parolee, your H1B will expire at some point. So you will have to apply for H1 extension again. That would come with an I-94 attached and put you back in H1B status.

[Spectator]

Spec - is this that memo you are referring to?

http://rbhs.rutgers.edu/internationalservices/immigration_updates/documents/uscis_memo_on_h-1b_eligibility.pdfitsmusa,

That is the Memo I quoted from, but not the one I thought I remembered or was looking for. On the USCIS site, it is http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/periodsofadm120506.pdf

[Kanmani]

Since an entry as a Parolee is not an admittance in H1B status, I don't see why time spent in the USA as a Parolee would count towards the maximum 6 years allowed.



Spec, probably this memo also might help clear the doubt.

Page 4 of http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/recaptureh1bl1102105.pdf

Periods of Time Outside the United States that May Be Recaptured by an H-1B Nonimmigrant Worker in a Specialty Occupation. Because section 214(g)(4) of the Act states that “the period of authorized admission” may not exceed 6 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 H-1B counts towards the maximum."

Viz, recapturing the time spent outside USA should come into picture whenever we are calculating the 6 years maximum, whether it is first spell or second spell (1 year exile) only.

In a situation described by you, if the alien has not extended his H1B using I-140 beyond 6 years, he can recapture the time spent outside of USA.

PS: I think I misunderstood your question. Little confusing but a good question.

[vizcard]

Thanks Spec and Kanmani. Figured I'd throw out a nice brain teaser to start off the week to test knowledge and research skills :) ... just kidding. Thankfully I don't have to worry about these scenarios anymore .. at least for myself.

[Spectator]

Kanmani,

Yes, that's the one!

Thanks for digging it out.

[Kanmani]

Viz,

I tried to understand the basis of your doubt, You want to know when a person working on H1B, who has traveled and returned on AP- resumed H1B employment , his H1B employment as parolee should not be counted towards 6 years max, correct? Evenafter completing his 6 years max, he should be able to recapture his days spent as Parolee correct?

I have the following points.

Actually, the interpretation of 'recapture' deals only with the time spent outside USA, that said vacation period should be un-interruptive of the operation of the employer. One cannot claim straight 6 months period ***as vacation but certain medical leave could be claimed and recaptured. The burden of proving the time spent outside falls solely on the applicant as initial evidence and that the adjudicator must not sent RFE to ask for additional evidence and advised to deny the recapture time at once if he feels it is not admissible.

For example, an MNC employer sends his H1B employee to London on business visit for a month. As soon as he left the US, he is not in H1B status, but his job duty requires overseas visit. In this scenario he cannot claim his business visit to recapture his absence, since he is still working on H-classification.

Having said that, an H1B employee paroled inside USA resuming his H1B employment should be considered as if he is in H- classification only. The reason behind that is he is allowed to extend his status and the status is re-instated with being previously in status. Even though he is not in H-1 Status, he has a Pseudo status to do so.

With this I come to a conclusion that his time as Parolee performing H1 duties cannot be recaptured.

I request Spec to prove me wrong.


*** H1B employees who are away from US for 6 months or more per year is excluded from 6 years max rule and allowed to extend as many as H1B if they wish.

[Spectator]

Kanmani,

I would have to disagree with what you have to say about the purpose of the trip.

It doesn't matter if the trip is connected with business or vacation, or the length of the trip, as long as it is at least "one 24-hour day" in duration. The burden is only to prove that the person was outside the USA and therefore not in H1B status.

Therefore, 6 months of vacation outside the USA, or the one month business trip could both be recaptured.

Since a Parolee is not in H1B status, that time should also be recapturable, in the same way. The person was not "admitted" to the USA in H1B status, which is what is counted towards the 6 year maximum allowed.

Employment authorization is a distinct and separate concept from status. The I-94 rules what status the person is in and can be supplied as evidence of the fact when recapturing time. I would want a legal consultation with a reputable immigration attorney before relying on that interpretation.

From the memo (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/recaptureh1bl1102105.pdf) you provided:


(A) Periods of Time Outside the United States that May Be Recaptured by an H-1B Nonimmigrant Worker in a Specialty Occupation.

Because section 214(g)(4) of the Act states that “the period of authorized admission” may not exceed 6 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 H-1B counts towards the maximum.

Thus, upon requesting an extension, the H-1B 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.

The applicant for extension seeking to recapture time spent outside the U.S. need not demonstrate that the time spent outside the U.S. was meaningfully interruptive of his or her H-1B stay. The reason for the absence is not relevant to the question of whether the time may be recaptured. Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured.

The applicant for extension must only demonstrate to the satisfaction of the adjudicator that he or she was outside the U.S. for the amount of time for which recapture is requested. Matter of IT Ascent, EAC# 0404753189, was designated as binding policy guidance on October 18, 2005. Officers should refer to the reasoning contained in this decision.

[Kanmani]

Thanks Spec and what is your verdict?

[Spectator]

Thanks Spec and what is your verdict?Kanmani,

I was busy editing my reply when you posted. I think my view is clear. Only time in H1B status counts towards the 6 year limit. A parolee is not in H1B status.