sustained H-1B Case: Unspecified

U.S. Citizenship 
and Immigration 
Services 
In Re : 21564413 
Appeal of Texas Service Center Decision 
Form I-129, Petition forNonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY15,2022 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-1 B 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)(iXb). The H-1B 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 Texas Service Center Director approved the Form 1-129, Petition for a Nonimmigrant 
Worker, it did so for a shorter period of time than the Petitioner 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; MatterofChawathe, 25 I&N Dec . 369,375 (AAO 2010). 
We review the questions in this matter de nova . Mattera/Christo 's Inc., 26 I&N Dec. 537,537 n.2 
(AAO 2015). Upon de nova review, we will sustain the appeal. 
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-1B 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-1 B admission period. Time spent physically outside the 
United States exceeding 24 hours by an alien during the validity of an H-1 B 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-1 B 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 2 l 4(gX4) 
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). 
Whether this position is a specialty occupation, and whether the Beneficiary is qualified to perform its 
duties, are not at issue here. The issue we address in this appeal is the appropriate timeframe for the 
petition's approval. The Petitioner requested an approval period from June 14, 2021, through October 
3, 2021. 1 The Director approved the petition from June 14, 2021, through July 2, 2021. In the 
Director's partial approval decision, they reasoned the Petitioner miscalculated the permissible 
timeframe in their requested dates of employment. The Director indicated any days in which the 
Beneficiary spent a portion of that day in the United States in the relevant Lor H nonimmigrant status 
must be counted against her period of authorized H-1 B stay. This meant her travel days-those in 
which she was not outside the United States for the full 24-hour period-would not count as days she 
could recapture. On appeal, the Petitioner submits a brief and additional evidence, and asserts the 
Director should have approved the petition for the full period requested. 
The Director did not fully represent their calculations in their written decision when they concluded 
July 2, 2021, was the date in which the Beneficiary would accrue six years in the relevant status in the 
United States. Below are our calculations. 
"In-status" Event Beginning Date Ending Date Years Months Days 
L-1 in United States 6/14/2015 9/19/2018 3 3 6 
L-1 in United States 10/19/2018 1/9/2020 1 2 22 
H-lB in United States 4/2/2020 6/14/2021 2 1 2 13 
Recapture Event Beginning Date Ending Date Days 
L-1 departure 9/20/2018 10/18/2018 29 
H-4 status 1/10/2020 4/1/2020 83 
Total days for recapture 112 
The original six-year H-lB status limit date was June 14, 2021, (six years from the Beneficiary's first 
day in L-1 status). Ifwe add the above time for recapture of 112 days, this provides a new six-year 
H-lB status limit date of October 4, 2021. Consequently, the Petitioner's original requested end date 
of October 3, 2021, was a permissible request and we will sustain the appeal based on that original 
requested ending date. 
ORDER: The appeal is sustained. 
1 We note this exact timeframe fortheBeneficiazy's H-lB status would fill the gap between two ofherother H-lBpetitions. 
2 This date is six years from the Beneficiary's first day in L-1 status. 
2