11/29/2006

 
The U.S. Citizenship and Immigration Services (USCIS) issued a memorandum setting forth the procedures for calculating the maximum period of stay allowed for H1B and L-1 nonimmigrants. This Memo addresses only issues pertaining to the recapture of time spent abroad. It in no way addresses or alters the H1B extensions beyond the six-year limitation that are commonly referred to as seventh-year extensions. The Memo, in simple terms, allows for persons in H1B and L-1 to recapture each day that they spend abroad during the standard H1B and L-1 duration.

Under the recent change in USCIS policy allowing for recapture of any time spent abroad, if a person on H1B spends two weeks outside of the U.S. on vacation each year during the six-year H1B period, that person can request, and should receive, twelve additional weeks of H1B time. The earlier policy of only allowing recapture for meaningful interruptions is no longer applicable. This is a significant change and will be beneficial to many people. 

The reason for this is that the same terminology interpreted by the AAO for H1Bs also appears in the L-1 regulations. Thus, the logic is the same for both categories. Of course, L-1s must be mindful of the fact that L1As have a seven-year period of permitted extension; L1Bs have a maximum five-year period of admission. Additionally, while the recapture provisions apply equally to H1Bs and L-1s, the special AC21 provisions for extending H1Bs beyond their six-year limitation do not apply to L-1 extensions beyond the seven- or five-year term.

Under the terms of the Memo, dependent family members, who would hold H-4 or L-2 status, will be able to extend their statuses for the additional time granted to the primary applicant. There was no mention of the need for the H-4 or L-2 to also travel abroad. Thus, it seems that the H-4 or L-2 could remain in the U.S. while the primary is abroad on a business trip, yet be able to extend his or her status with the H1B or L-1 primary spouse. It is unclear, however, if the USCIS will interpret the Memo in this way.

A person claiming recapture needs to be prepared to document the time spent abroad. The Memo lists appropriate evidence as being passport stamps, I-94s, and/or plane tickets. Consequently, one should keep such evidence in a safe place, as it may be needed many years hence.