Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Friday, June 6, 2014

H1Bs: Get your FULL Six Years thru Recapturing

There is an important difference between six calendar years of H1B and six years in H1B status.

After being granted H1B status, any full day you spend outside of the U.S. will NOT be counted as part of your initial six year limit of H1B time.  Although this seems simple, employers and lawyers continue to struggle with the concept. 

The process of adding time spent outside of the US to an H1B extension is called "recapturing".

Last week, I reviewed two more cases where the H1B workers were already in their 7th and 8th year of H1B, yet they never received - or ever requested - the unused H1B time from their first six years.  One of them had forfeited over four months of H time they could have added to their 7th year extension.

Not everyone can benefit from recapturing H1B time.  If you changed status to H1B and received a full three year initial grant, then received a three year extension, all while never leaving the US, there is no time available to be recaptured.  In this case, you have spent a full six years in the US as an H1B.  In some other cases, the small amount of time available to be recaptured is not worth the trouble if you are not eligible for an AC21 extension beyond just six years anyway.

Yet, in other situations, especially when the Alien Labor Certification (ALC) is filed during the 6th year, recapturing time can be a life-saver. 

Consider this scenario.  ALC filed March 15, 2014 and is on appeal.  Meanwhile, your 6th calendar year of H1B expires January 1, 2015.  One of the ways you can extend H1B status beyond the initial six years is if your Alien Labor Certification has been pending more than one year (AC21 Sec.106), but that will not be until March 15, 2015, leaving a 73 day gap between H1B expiration (January 1, 2015) and eligibility for a one-year H1B extension (March 15, 2015).

There are many possible solutions for this problem.  One answer would be to leave the US on or before your H1B expires, then return on a new, 1-year petition with a start date of March 15, 2015.  Of course, that would require missing around 2 ½ months of work and enduring the delays and uncertainties of consular processing for a new H1B visa.  Or, you can consider recapturing time to fill that 73 day gap.

In this scenario, if your first H1B petition had a validity date of January 2, 2009, but you did not enter the US as an H1B until January 13, 2009, you can recapture 11 days of unused H1B time (you cannot recapture the day you arrived or departed the US). 

Also, if you have taken four 2-week vacations home during your first five years as an H1B, this may be another 44 days you spent out of the US.  Combining this 44 days with the 11 days for the late entry, we now have 55 days of H1B time available to claim, but this still leaves us 18 days short of the 73 days needed to cover the gap between the H1B expiration and 1-year extension eligibility.

The most convenient course of action now is to take one or more trips outside of the US that total at least 18 full days.  Go home, hang out in Toronto or Cancun, it doesn't matter where as long as it is not in the United States.  When you return using your current visa, have your H1B extension filed for both the 73 recaptured days PLUS the 1-year AC21 extension.  You no longer have a gap in your H1B time.  Your H1B extension will now be from January 2, 2015, to March 15, 2016.

Here are a few pointers for recapturing time.

--Do not expect USCIS to do the computations for you.  USCIS internal guidance says to not honor requests to recapture time unless all of the evidence is submitted with the request.

--Keep track of your trip evidence.  Passport stamps are used extensively, but boarding passes and itinerary printouts are often necessary to prove when you departed the United States.

--Full copies of all passports used are not necessary with normal H1B extensions, but are required if requesting recapture time.

--The possible scenarios and solutions are endless if you are creative, but the best solutions incorporate the use of your current visa, thus avoiding the need to consular process for a new visa before returning.

--A single H1B extension can include time from several different immigration provisions.  As long as the requested time does not exceed three years, you can combine all the time remaining in your current H1B, PLUS any time you wish to recapture, PLUS any AC21 extension time for which you may be eligible.

One of the problems highlighted in the proposed H4 EAD rule is how to prove an H1B is actually beginning their 1 year extension under AC21 section 106(a).  In both petitions I reviewed last week, the employer asked only for 1-year extensions under AC21, but since the employees' time out of the US was never recaptured, the workers never completed a full six years of H1B before they were in their "7th year" AC21 extension!  In the proposed rule, USCIS specifically opened the floor for suggestions on how to deal with the issue of evidence.  Unfortunately, it is difficult to wade through the river of non-substantive comments to review any valid suggestions.

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