October 28, 2005

USCIS Announces Adoption of AAO Decision on H-1B and L-1 Recapture of Time Spent Outside the U.S.

Acting Deputy Director of the United States Citizenship and Immigration Services ("USCIS"), Robert Divine, has designated an Administrative Appeals Office ("AAO") opinion on the recapture of H-1B and L-1 time spent overseas as a USCIS Adopted Decision. This designation makes the AAO opinion binding on all subsequent USCIS adjudications on H-1B and L-1 recapture requests. It allows includes a provision for the spouse and minor children of the principal alien who recaptures H-1B or L-1 time to receive coextensive H-4 and L-2 extensions with that principal alien.

The AAO opinion provides that for purposes of calculating the maximum period of stay in H-1B or L-1 status in the U.S., only the periods of authorized admission in the relevant non-immigrant status will allow time toward the maximum period of stay to accrue. The alien must be lawfully admitted and physically present in the U.S. for such periods of stay to accrue. The AAO has clearly stated that the petitioner requesting an extension of stay beyond the six years of stay must provide the appropriate documentary evidence of the time spent outside the U.S. For example, copies of passport stamps and Form I-94 arrival-departure records should be accompanied by a statement of chart of dates that the beneficiary spent out the U.S. as well as other consistent, clear and corroborating proof of departure from and re-entry to the U.S. This AAO decision incorporates the 2001 decision from the Southern District of California in Nair v. Coultice 162 F. Supp. 2d 1209 (S.D. Cal 2001) where the court held that time spent outside the U.S. could be recaptured and added back to the six year statutory maximum period of authorized stay in the U.S. in H-1B status.