Generally, H-1B status can be held for a total of six years (applied for in increments of up to three years). However, extensions beyond the six years are possible in some circumstances. If an employee believes that he/she is eligible and the hiring department wishes to pursue an extension, the hiring department should contact the OISS.
H-1B Recapture Time
Only time spent physically present in the United States in H-1B status is counted toward the six-year maximum H1-B period. Time spent physically outside the United States during the validity period of an employer’s H-1B petition is not counted towards the six-year period of H-1B eligibility. Days spent outside the United States can be “recaptured” and added back to the employee’s total maximum period of stay, provided those absences are properly documented.
To properly document time spent outside of the U.S., H-1B employees are encouraged to keep a travel folder along with all related immigration documents. The based evidence of travel is the employee’s I-94 records and the arrival/departure stamps. Other supplemental proof of travel such as boarding passes, airline tickets frequent flyer records, travel itineraries, credit card statements with travel purchases, and hotel stays are commonly accepted as credible evidence by USCIS evidence for recapture time. We also suggest that it’s best to make copies of arrival/departure stamps in the passport as soon as the employee returns to the US, especially for those who will travel frequently before the stamp gets covered by another. If the passport is up for renewal, we also suggest making copies of the old passport before surrendering the old one. Hiring departments may be able to assist in documenting recapture time if any international travel was sponsored by the department. Proof of department-sponsored travel may include copies of travel-related documents that can be used for recapturing time.
Recapture time is requested with an application to extend H-1B employment. The normal H-1B request forms and filing fee are required, in addition to the recapture documentation.
Extensions Based on Pending Permanent Residence
Under certain circumstances, an H-1B employee may qualify for an extension of H-1B status beyond the six years based on a pending permanent residence application: 365 days or more have passed since the filing of a labor certification (also known as the 365-day rule) or I-140 petition if a labor certification is not required, or the employee is the beneficiary of an approved I-140 petition and is not able to file to adjust status to U.S. permanent residence due to country visa limitations. The OISS will need to review any I-140/I-485 receipt and/or approval notices, to determine if the employee is eligible for an extension.
The normal H-1B request forms and filing fee are required for this type of application. In general, OISS recommends that departments continue to extend H-1B status (when possible) until permanent residence is approved, rather than the employee working on an EAD.
If a department is interesting in sponsoring a permanent residence application for an H-1B employee, it is recommended that the department discuss the options with the Director of OISS no later than the beginning of the employee’s fourth year of H-1B status.
Restarting the Six-Year Clock
If the employee has been physically absent from the U.S. for at least twelve consecutive months, they may be eligible for another six years of H-1B status. Documentation of time spent outside the U.S. is necessary to apply for the additional period of H-1B status; this may include proof of employment outside the U.S., copies of lease agreements, etc.
The normal H-1B request forms and filing fees are required, in addition to the documentation of time spent outside the U.S.