If you are on H1B visa, you must be wondering, sometimes, how to extend your H1B status after the maximum period of 6 years or whether you can extend your stay in the US after 6 years of valid H1B status. Yes, you can do that without accruing visa overstay or incurring a penalty. The H1B visa recapture rule is one of the few secrets that you should have knowledge of.
Generally, an H1B visa holder is entitled to not more than 6 years of stay in the United States. Initially, the much coveted H1B visa is issued to non-immigrants for 3 years, which is extendable only for another 3 years. the expiration of your H1B status on completion of six years requires you leave the US and bars you from re-entry into the country for at least one year.
However, the H1B visa recapture rule can help you bypass this restriction. Most probably, you don’t know that the period of your stay on H1B visa includes only the days you spend physically in the US, not your holidays outside of the US during this time. Precisely, any trip exceeding 24 hours outside of the US border, irrespective of the purpose, is excluded from the period of 6 years in the US while you have valid visa status, according to the H1B visa rules.
The time spent in any part of the world other than the USA during the valid H1B period is called ‘recapturing’ time. The time you don’t spend in the US during this period is called the ‘unused’ time. You can reclaim this time to extend your visa status beyond the usually permissible length of stay in the US. Whenever you travel to India for a few days, a few weeks, or a month or two while holding a valid H1B visa, the clock stops for the time spent in India and this does not count towards the H1B period of 6 years.
Interestingly, the H1B visa recapture rule does not need you to state or explain your purpose of traveling and spending some time outside of the US. Any time (more than 24 hours at a stretch) spent outside of the US, whether for a family vacation or a business trip, can be recaptured and added back to your valid period of stay in the US through a petition. Now you must be keen to know how.
Now you must be keen to know how to file an H1B extension petition to recapture the ‘unused’ time. Though the onus of providing documentary proof for the time spent abroad falls on you, it is your employer who is required to file an H1B visa recapture petition to the US Citizenship and Immigration Services (USCIS). The documents you should provide to help your employer prove that you have physically spent a period of time outside of the US are:
- Copies of your international flight tickets and boarding passes
- Copies of the passport page with stamps given at the airport(s) outside of the US
- Copies of your I-94 card with arrival and departure records
“It is obvious that you should not lose your boarding passes for international flights to India or other destination. You should keep the boarding passes and flight tickets to India safe as these are part of the documentary evidence for your time spent in India or some other place outside of the US border,” said Sourav Agarwal, the Editor of Travel Beats, a leading Indian Diaspora portal by Indian Eagle Travel.
Will I receive a Request for Evidence from USCIS if my H1B extension petition fails to recapture ‘unused’ time or the documents provided are inadequate for my claim to have spent days outside of USA?
No. USCIS does not send a request for evidence to H1B visa holders whose petitions to recapture the visa time spent abroad are not approved due to inadequate documents.
Will I be charged of H1B visa overstay if I stay in the USA for the recaptured days added back to my H1B period of time?
No. There is no such risk as visa overstay in this case. The H1B visa recapture rule authorizes you to extend your visa status for the days you spend outside of the US during the 6-year visa term. It is absolutely legitimate.
What about my dependents on H4 visa if my stay on H1B is extended through a petition for H1B visa recapture unused time?
Your dependents on H4 visa, spouse and children, are also eligible for the extension by the same period of time that you get added to your visa status.
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