August 15, 2002

H-1B Employees and Recapturing Lost Time

The INS was successfully sued last year when a foreign national and his U.S. employer challenged the denial of a request to recapture time spent outside of the U.S. while the foreign national was in H-1B nonimmigrant status. (Nair v. Coultice, 162 F. Supp. 2d 1209 (S.D. Calif. 2001) This ruling was significant since it appeared to allow foreign nationals who were reaching their 6 year limit in H-1B status to attempt to recapture days and months and extend their time in the U.S. in H-1B status without having to leave the U.S. for the required one year period.

The California case dealt with an H-1B employee nearing his sixth year on his H-1B who applied for and was denied an extension that was based on time he had spent outside the US. The court held that the extension request should have been granted and the time added to his H-1B status. The decision appeared to provide a framework of sorts to a long-standing but haphazardly applied INS practice of permitting recapture of time spent outside of the U.S.

The decision interpreted the correct method of determining the 6 year period allowed under the H-1B visa program by stating that the regulations do not adequately explain the calculation of the 6 year limit. Turning to the history of INS policy for guidance, the court stated that there appeared to a policy of "toll[ing] the six-year period during an alien's absence" from the U.S. with no clear distinctions made regarding the reasons for the absence (i.e. whether the absence was personal, work related, for vacations, etc.). Specifically, the court concluded that on the basis of the plain language of the regulation, the six-year period only includes time spent physically present in the United States.

However, we are seeing the INS request information regarding the exact nature of the time spent outside the U.S. and decisions whereby the request for the recapture of time has been denied. Often the decision is made without an explanation and the INS has responded to GT's requests for clarification by stating that the Service had concluded that the time was not sufficiently interruptive of the employee's H-1B status and employment. In addition, during the Annual Conference of the American Immigration Lawyers Association, INS Directors from the various Service Centers commented on their reluctance to follow the California decision, as it was being appealed and no final determination had been made by the INS to apply the Nair interpretation.

What does this mean for those seeking to extend their H-1B time beyond 6 years? As always, it is important to providing clear explanations and documentation, in addition to carefully considering the type of absences for which a recapture of time is sought. For example, vacations to the home country are generally not considered interruptive, even when the vacations were for a considerable length of time (three or four weeks). Overseas assignments of several weeks' length, however, may be considered interruptive of the status. Each situation is considered individually and a determination made on the specific facts. Employees nearing the end of their time in the United States are advised to seek counsel when reviewing their options.