What is H-1B Recapture?

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A person granted H-1B status can be present in the United States for up to six years. But what happens if that person leaves the United States and his or her employer during that time period? Does the six year period continue to run or is it tolled?

Federal law does indeed allow for the six year period to be tolled, which means that if a person is hired by a new employer, he or she can regain the H-1B status without being subject to a quota.

How does this work?

Specifically, you can "recapture" the amount of time you spent outside of the United States during your H-1B period. This means anytime you were outside of the United States during your period can be added to your expiration date. Keep in mind, you will have to show evidence to the U.S. Government that you were indeed outside of the country. This could be travel docs, I-94 card, passport stamps, financial records, pictures, etc.

Your employer will need to file another Form I-129 with USCIS and complete Form I-9.  The application must be filed before your first H-1B status expiration date.Regardless of the number of days available for recapture, the law allows you to remain in legal status beyond the I-94 expiration date during the pendency of the extension application for up to 240 days or until USCIS makes a decision, which ever comes first.

Your Form I-129 will be exempt from the H-1B cap because you have not used up your six-year period from your original approval. Once your employer completes the I-9 and your I-129 is approved by USCIS, you can begin working.

From the author: What is H-1B Recapture?
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