remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 24898024 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 1, 2023 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-lB nonirnrnigrant 
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 California Service Center Director approved the Form 1-129, Petition for a Nonirnrnigrant Worker 
(petition) for a shorter period than requested. The matter is now before us on appeal. The Petitioner 
bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . Section 291 
of the Act; Matter of Chawathe, 25 I&N Dec. 369,375 (AAO 2010) . We review the questions in this 
matter de novo. Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 
review, we conclude that a remand is warranted in this case. 
Section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4), sets a six-year limitation on the period of 
authorized admission or stay for an H-lB nonimmigrant. However, as provided by 8 C.F.R. 
§ 214.2(h)(13)(iii)(A), time spent outside the United States does not necessarily count when 
calculating the end-date of that six-year period. The regulation at 8 C.F.R. § 214.2(h)(13)(iii)(C) 
explains: 
Calculating the maximum H-1 B admission period. Time spent physically outside the 
United States exceeding 24 hours by an alien during the validity of an H-IB petition 
that was approved on the alien's behalf shall not be considered for purposes of 
calculating the alien's total period of authorized admission under section 214(g)(4) of 
the Act, regardless of whether such time meaningfully interrupts the alien's stay in 
H-IB status and the reason for the alien's absence. Accordingly, such remaining time 
may be recaptured in a subsequent H-IB petition on behalf of the alien , at any time 
before the alien uses the full period of H-1 B admission described in section 214(g)( 4) 
of the Act. 
Further details regarding this calculation, including the types of evidence that may be submitted and 
clarification that we may grant all, part, or none of the recapture period requested, are contained at 
8 C.F.R. § 214.2(h)(l3)(iii)(C)(l). 
We agree with the Director's ultimate determination that the extension request should be approved but 
for a limited validity period. However, we disagree with the Director's calculation and conclude that 
the validity period should cover a shorter period than the one granted. The Director laid out the facts 
of this case, and we incorporate them here by reference. On appeal, the Petitioner generally relies on 
the definition provided in section 10l(a)(l5)(H)(i)(b) of the Act to argue that any time a beneficiary is 
unable to "perform" services as an H-1 B or L-1 nonimmigrant, including any authorized grace periods, 
they should be eligible for "recapture" time. We disagree. As noted above, section 2 l 4(g)( 4) of the Act 
establishes that "the period of authorized admission" for an H-lB "nonimmigrant may not exceed 6 
years" and the regulations at 8 C.F.R. § 2 l 4.2(h)(l 3) provide further guidance related to "admission." 
While absences from the United States that exceed 24 hours are eligible for recapture pursuant to 
8 C.F.R. § 214.2(h)(l3)(iii)(C), the Petitioner has not cited to any regulation or policy which would 
permit the requested recapture of time spent in the United States in a period of authorized admission. 
Moreover, the Petitioner appears to confuse the period of authorized admission with maintenance of 
status. For example, the regulation at 8 C.F.R. § 214. l (1)(2) states, in pertinent part: 
An alien admitted or otherwise provided status in . . . H-lB, . . . [or] 
L-1 ... classification and his or her dependents shall not be considered to have failed 
to maintain nonimmigrant status solely on the basis of a cessation of the employment 
on which the alien's classification was based, for up to 60 consecutive days or until the 
end of the authorized validity period, whichever is shorter .... 
Contrary to the Petitioner's claim, the regulation does not add "additional time to the statutory 
maximums," but rather allows the individual to maintain their status under the exact scenario the 
Beneficiary experienced with the early termination of his employment. Therefore, any time that the 
Beneficiary remained in the United States in a period of H-lB or L-1 status is to be subtracted from 
the statutory six year maximum. 
Although we will not include every date and milestone relating to the Beneficiary's immigration status 
and filings, for clarity we offer information related to the Beneficiary's authorized admission in H-1 B 
and L-1 nonimmigrant status during which he accrued time toward his six-year limit. Additionally, 
we will subtract any time eligible for recapture under 8 C.F.R. § 214.2(h)(l3)(iii)(C). We also observe 
that both the Petitioner and the Director made incorrect calculations and we correct those through our 
below statements. 1 
The Beneficiary's total time in a period of authorized admission in L-1 B status comprised 970 days. 2 
Accounting for his 94 recaptured days in which he was outside the United States for a full 24-hour 
period, his calculable time in L-lB status was 876 days. As it relates to his time in H-lB status, his 
1 For example, we agree with the Petitioner that the Director incorrectly stated that the Petitioner's request to change status 
to H-4 was approved on August 20, 2021. It was actually approved from August 12, 2021, through May 15, 2023. 
2 The filing of a F01m 1-485, Application to Register Pe1manent Residence or Adjust Status, had no effect on the 
Beneficiary's "period of authorized admission" as an L-1 B nonimmigrant as described under section 2 l 4(g)( 4) of the Act. 
2 
total time in a period of authorized admission amounts to 1,010 days ( from November 6, 2018 through 
August 11, 2021, as his request to change status to H-4 was approved on August 12, 2021). After 
adding these figures totaling 1,886 days, then subtracting that sum from the number of days equal to 
six years (2,190), the result is 304 days remaining for the Beneficiary to spend in H-1 B status pursuant 
to this extension request, which is lengthier than the period granted by the Director. We will remand 
the matter to the Director to approve the petition in accordance with the above analysis. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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