sustained H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re : 20862421 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN. 22, 2022 
The Petitioner 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)(l5)(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. 
While the Director of the California Service Center approved the petition, she did so for a shorter 
period of time than requested. On appeal, the Petitioner submits a brief and additional evidence, and 
asserts that the Director should have approved the petition for the full period requested . 
It is the Petitioner's burden to establish eligibility for the requested benefit by a preponderance of the 
evidence. Section 291 of the Act, 8 U.S.C . § 1361; Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 
2010) . We review the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec . 
537, 537 n.2 (AAO 2015). Upon de nova review, we will sustain the appeal. 
I. LAW 
Section 214(g)(4) of the Act, 8 U.S.C. § l 184(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. When it comes to making that calculation, the 
regulation at 8 C.F.R. § 214 .2(h)(13)(iii)(C) states the following: 
Calculating the maximum H-lB admission period. Time spent physically outside the 
United States exceeding 24 hours by an alien during the validity of an H-lB 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-lB status and the reason for the alien's absence. Accordingly, such remaining time 
may be recaptured in a subsequent H-1 B 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)(13)(iii)(C)(]). 
II. ANALYSIS 
Whether the proffered position is a specialty occupation, and whether the Beneficiary is qualified to 
perform its duties, are not at issue here. The only question before us today is how long the petition's 
period of approval should be. 
There is no dispute that the Beneficiary has exhausted her six-year period of authorized stay in H-lB 
status. The Petitioner, however, argues that 133 days from that period are eligible for recapture per 
the terms of 8 C.F.R. § 214.2(h)(13)(iii)(C). As such, the Petitioner requested on the Form 1-129, 
Petition for a Nonimmigrant Worker, that the petition be approved from December 12, 2021, to April 
21, 2022. 
While the Director did agree that some time was eligible for recapture, she did not agree with the 
Petitioner that the period allowable for recapture amounted to 130 days. Instead of approving the 
petition through April 21, 2022, as requested, she approved it through February 10, 2022. 
We have reviewed the evidence submitted on appeal and see that, while holding continuous H-lB 
status, the Beneficiary took numerous trips outside of the United States. That evidence establishes 
that it is more likely than not she is indeed eligible to recapture 133 of the days she spent outside the 
United States, as requested. 1 On appeal, the Petitioner asserts that the H-lB validity period should 
have been approved until April 24, 2022. In support of its assertion, the Petitioner provides copies of 
the Beneficiary's passport stamps and flight itinerary information. 
After reviewing the record in its entirety, we find that the Beneficiary spent a total of 133 days outside 
of the United States that she is eligible to recapture: 
Departure Date Entry Date Days Outside the U.S. 2 
May 28, 2016 June 11, 2016 13 
April 24, 2017 April 29, 2017 4 
July 1, 2017 July 4, 2017 2 
June 3, 2018 June 23, 2018 19 
August 17, 2019 September 21, 2019 34 
1 On appeal, the Petitioner explains that it made a mistake calculating the duration of the fourth trip, as the departure date 
was June 3, 2018, and not June 6, 2018. as initially indicated. The Petitioner therefore concludes that the Beneficiary is 
eligible to recapture 133 days, rather than 130 as initially requested. 
2 In reaching these figures we included neither departure nor reentry dates. For example, when calculating the number of 
days eligible for recapture from the overseas trip memorialized in the first row, the sum came to 13 days because we 
included neither the departure date (May 28, 2016) nor the reentry date (June 11, 2016). 
2 
December 21, 2020 I December 26, 2020 I 4 
July 30, 2021 I September 26, 2021 I 57 
Total Days Outside the United States: 133 days 
The evidence of record now establishes by a preponderance of the evidence that the Beneficiary is 
eligible to recapture 133 days from her six-year period of H-lB stay. We will therefore sustain this 
appeal. However, because the Petitioner requested at the time of filing that the petition be approved 
until April 21, 2022, we cannot approve it through April 24, 2022, as now requested on appeal. 
Instead, the petition will be approved to April 21, 2022, as the Petitioner requested when it filed the 
petition. 
ORDER: The appeal is sustained. 
3