7/20/2010

AAO Decision Analysis #1: Authorized admission for H-1B Status and L-1 Status Applies Only to Time Spent Lawfully in the US

The Administrative Appeals Office (AAO) has appellate jurisdiction over United States Citizen and Immigration Service (USCIS) regional centers and district offices. The decisions of the AAO provide legally sound holdings for disputes involving immigrant and nonimmigrant petitions and applications entered into the USCIS centers.

AAO recently sustained the appeal of a beneficiary who asked for a 30 day extension of H-1B status.  The USCIS denied the petition on the grounds that the beneficiary had already been employed in the US for six years, the maximum time period allowed under the status classification. 

In addition, the USCIS found that the 30 day period the beneficiary spent out of the US while on business for the US employer just prior to the expiration of the six-year H-1B status did not interrupt the beneficiary’s employment and did not entitle the beneficiary to an additional 30 days in H-1B status.  The AAO looked at statutory language and determined that time spent outside of the US interrupts the accrual time in H-1B status thus entitling the beneficiary to an 30 day extension.

The AAO looked at statutory language and the pertinent regulations to determine whether or not the accrual of time spent in H-1B status is interrupted by brief trips out of the US.  According to Section 101(a)(13)(A) of the Immigration & Nationality Act (INA), the term “admission” means time an alien is admitted in the US lawfully after inspection and authorization by an immigration officer.  

Under the relevant regulation, 8 C.F.R § 214.2(h)(13)(iii)(A), an alien in a specialty occupation with H-1B status who has spent six years in the United States may not seek to extend status.  The USCIS director held this language to mean that to recapture time spent outside of the US, that time must be interruptive of the qualifying employment. The AAO disagreed with the USCIS director who denied the extension of status on the basis that the time spent out of the US did not interrupt the H-1B status qualifying employment. The AAO stated that in accordance with the statute and the regulations, only time spent inside the US after being lawfully admitted can be counted toward the maximum period of stay under H-1B status. 

Therefore, the beneficiary was not in status for US immigration purposes while outside of the US.  This means that the H-1B status was interrupted when the beneficiary left the US and the H-1B status was renewed when the beneficiary reentered lawfully. The AAO added that this holding pertaining to “periods of authorized admission” also applies to L-1 status as found in the statute INA §214(c)(2)(D).

Additionally, the AAO noted that the beneficiary is in the best position to provide evidence of departures and reentries into the US.  Thus, to recapture time spent out of the US for H-1B status and L-1 status, the beneficiary must provide supporting documentation such as I-94 forms and copies of visa entry and exit stamps