Recapturing Time: Can You?? Should You?

The INS was successfully sued last year in California (Nair v. Coultice, 162 F. Supp. 2d 1209 (S.D. Calif. 2001) to require a recapture of time outside the US while in nonimmigrant status. The case dealt with an H-1B employee nearing his sixth year who applied for and was denied an extension that would have equaled the time he had spent outside the U.S. The court held that the time was to be added to his H-1B status. This has given an imprimatur to a long-standing but haphazardly applied INS practice of permitting recapture of time spent outside the U.S. Many have since filed petitions to recapture time outside the U.S in order to prolong their six years.

However, since the California Decision, we have seen INS requests for information regarding the exact nature of the time spent outside the U.S. The INS has issued decisions against recapture when the agency felt that the time was not sufficiently interruptive of the employee’s H-1B status. 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, are typically considered interruptive of the status. Each situation is considered on its own facts. Employees nearing the end of their time in the U.S. are advised to seek counsel when considering their options.

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