dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 14739014 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 26, 2021 
The Petitioner, a software applications development provider, seeks to temporarily employ the 
Beneficiary under the H-lB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both: (a) the theoretical and practical application of a body of highly specialized knowledge; 
and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Director of the California Service Center granted the petition for a limited validity period, which 
accounted for the days the Beneficiary spent outside of the United States and for which the Petitioner 
wished to recapture. The dates requested for the Beneficiary's intended employment were from May 
9, 2020 to August 7, 2020.1 The Director approved the petition for the period of May 9, 2020 to 
August 6, 2020, one day short of the full requested period. The Petitioner appeals this determination 
and argues that the validity period approved should have been extended until August 7, 2020. The 
Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
In general, section 214(g)(4) of the Act provides that the period of authorized admission for an H-lB 
nonimmigrant may not exceed six years. For determining a beneficiary's maximum period of 
authorized admission as an H-lB nonimmigrant, 8 C.F.R. § 214.2(h)(13)(iii)(A), states in pertinent 
part: 
An H-lB alien in a specialty occupation . .. who has spent six years in the United States 
... may not seek extension, change status, or be readmitted to the United States under 
1 The Petitioner's prior petition for this Beneficiar~ I was approved for employment dates of June 5, 
2019 to May 8, 2020. The current petition seeks to continue this previously approved employment with no change to the 
employer and to extend the Beneficiary's status. 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically 
present outside the United States, except for brief trips for business or pleasure, for the 
immediate prior year. 
The term "recapture" in this context references the period of time spent outside the United States that 
an alien beneficiary seeks to have subtracted from the maximum period of stay in H-1B status, as 
governed by section 214(g)(4), and thereby added back (i.e., "recaptured") when seeking an extension 
of H-1B status. To calculate the maximum H-1B admission period, 8 C.F.R. § 214.2(h)(13)(iii)(C) 
provides that "[t]ime spent physically outside the United States exceeding 24 hours by an alien ... 
shall not be considered for purposes of calculating the alien's total period of authorized admission .. 
. "(emphasis added).4 
II. ANALYSIS 
On appeal, the Petitioner provides the Beneficiary's United States entry and exit dates in a table as 
follows: 
United States Entry United States Exit 
May 19, 2014 April 6, 20155 
Apri I 26, 20166 February 3, 2016 
February 29, 2016 March 7, 2018 
Apri I 15, 2018 N/A (Beneficiary present) 
Two of the dates listed in the above table are not supported by the evidence in the record. However, 
the evidence in the record does support the entry and exit dates the Petitioner listed on page 15 of the 
Form 1-129, H Classification Supplement. According to the petition dates, the Director correctly noted 
in her decision that the days eligible for recapture are calculated based on the following periods of 
time spent outside of the United States: 
April 8, 2015 to April 26, 2015 
February 3, 2016 to February 29, 2016 
March 7, 2018 to April 15, 2018 
4 In accordance with 8 C.F.R. § 214.2(h)(13)(iii)(C)(1), it is the "petitioner's burden to request and demonstrate the specific 
amount of time for recapture on behalf of the beneficiary. The beneficiary may provide appropriate evidence, such as 
copies of passport stamps, Arrival-Departure Records (Form 1-94), or airline tickets, together with a chart, indicating the 
dates spent outside of the United States, and referencing the relevant independent documentary evidence, when seeking to 
recapture the alien's time spent outside the United States. Based on the evidence provided, USCIS may grant all, part, or 
none of the recapture period requested." 
5 Flight itinerary evidence in the record suggests that the Beneficiary departed from the United States on April 8, 2015, not 
on April 6, 2015. Further, we note the Beneficiary's flight itinerary included a foreign connecting flight after de:rting 
the United States and before the Beneficiary's final destination. The Beneficiary's passport contains al I India 
arrival stamp for April 10, 2015. Accordingly, the evidence does not support a finding that the Beneficiary exited the 
United States on April 6, 2015, but the record does support an exit date of April 8, 2015. 
6 The information contained in the record supports a finding that the Beneficiary arrived in the United States on April 26, 
2015, not on April 26, 2016. 
2 
The Director further concluded that the periods for recapture are calculated based upon time exceeding 
twenty-four hours outside of the United States, meaning that days spent partially inside the United 
States and partially outside of the United States are not eligible for recapture. Whenever an individual 
departs the United States, at least a portion of the departure day is spent physically present in the 
United States. Therefore, the date upon which an individual travels to exit the United States is not 
counted as a day to recapture because the time spent outside of the United States has not exceeded 
twenty-four hours. Conversely, the day upon which an individual enters the United States is counted 
as a full day in the United States, even though the individual's physical presence in the United States 
may comprise less than a full 24-hour period. 7 Accordingly, the following chart summarizes the 
calculation of days spent outside of the United States, beginning with the day after each departure 
date. As reflected in the Director's decision, the Petitioner's brief, and in the below table, the recapture 
of 80 days is not in dispute. 
First Full 24-hour Period Entry Back into the United Total Number of Days Outside 
Outside the United States States of the United States 
Apri I 9, 2015 Apri I 26, 2015 17 days 
February 4, 2016 February 29, 2016 25 days 
March 8, 2018 Apri I 15, 2018 38 days 
TOTAL: 80 days 
The Petitioner counts six years from the Beneficiary's first entry into the United States on May 19, 
2014 and then adds the 80 recaptured days. As previously stated, the Petitioner appeals the Director's 
approval of the limited validity period and requests the full validity period, the difference of which 
amounts to one day. In independently calculating six years from May 19, 2014, we reach May 18, 
2020. Adding 80 days to May 18, 2020, we reach August 6, 2020. Here, we believe the Petitioner's 
use of the website https://www.timeanddate.com/date/duration.html (last visited Feb. 25, 2021) may 
be a source of confusion. When using the site and adding six years to May 19, 2014, the website 
calculates the date as May 19, 2020. This calculation appears to add six years plus one day, as the 
actual day of May 19, 2020 is the first day of a seventh year, rather than the last day of a sixth year. 
While the Petitioner correctly determined that adding 80 days to May 19, 2020 amounts to August 7, 
2020, the Petitioner has not provided sufficient evidence to support a finding that the addition of 80 
days starts from May 19, 2020. Here, the record supports a finding that the counting of 80 recaptured 
days begins from May 18, 2020. Accordingly, we agree with the Director's determination that the 
limited validity period approved until August 6, 2020 correctly affords the Beneficiary all 80 days 
eligible for recapture. 8 
7 When calculating the dates to recapture using https://www.timeanddate.com/date/duration.html (last visited Feb. 25, 
2021), we do not check the box to include the end date in the calculation. Selecting this box would add the entry date into 
the United States as a day to recapture, which, for the reasons explained above, should not be counted for recapture. 
8 Though not a subject of this appeal, we conclude that the record before us contains insufficient information to establish 
that the "technical lead" position is a specialty occupation. We observe several discrepancies and inconsistencies within 
the record, in addition to duty descriptions that do not support a finding that the proffered position requires a bachelor's 
degree or higher in a specific specialty, or the equivalent. The Petitioner should be prepared to address this issue in any 
future H-1B filings. 
3 
111. CONCLUSION 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, it is a 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. Based on the evidence in the record and provided by the Petitioner on appeal, USCIS 
has granted the Beneficiary all of the time requested for recapture. 
ORDER: The appeal is dismissed. 
4