USCIS officers shall comply with the following guidance to determine whether periods of time spent by an H-1B nonimmigrant worker in a specialty occupation outside the United States (recapture time) will be recaptured:
(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 satisfact ion 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.
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