“Re-capturing” time spent outside the U.S. is an important issue for non-immigrant visa holders facing the end of the maximum period of stay authorized by their non-immigrant classification. The ability to “re-capture” allows certain non-immigrants to “add” time spent outside the U.S. to the duration of their non-immigrant status. Until now, individuals in R-1 status have not enjoyed the same ability to re-capture time spent outside the U.S. as their H and L visa classification counterparts. This changed on March 8, 2012, with the issuance of a USCIS Policy Memorandum outlining new procedures for calculating the maximum period of stay for R-1 Nonimmigrants.
Why is “Re-capture” Important?
The ability to re-capture time spent outside the U.S. in non-immigrant status is very useful to individuals who seek to apply for additional immigration benefits, such as permanent residency, but also face the end of their maximum duration of stay in the U.S. The ability to re-capture even a few weeks of time may afford a religious worker with expiring R-1 status the opportunity to remain in the U.S. in valid status while additional petitions are filed and adjudicated. The ability to re-capture can also be used as a strategy in time-sensitive situations for religious workers who have not spent a great deal of time outside the U.S. For example, a well-timed vacation toward the end of the maximum allowable non-immigrant stay may provide the few extra days or weeks necessary to push the immigration process along and avoid the accrual of unlawful presence or a hasty exit from the U.S.
What’s new for R-1 Holders and Their Employers?
The ability to re-capture time spent outside the U.S. to R-1 status holders is unprecedented. R-1 status for religious workers is initially granted for 30 months from the date of initial admission, and can be extended for an additional 30 months for a total time of 60 months (five years). Once a religious worker reaches the maximum period of 5 years in R-1 status; s/he must remain outside the U.S. for at least one year prior to filing a new R-1 petition. The USCIS March 8, 2012 policy memo states “USCIS has determined that the R-1 regulations permit an interpretation that only time actually spent in the United States in R-1 status to be counted towards the maximum 5 years of authorized stay.” Furthermore, an individual is allowed to recapture time spent outside the U.S. “regardless of whether they are currently in the U.S. or abroad and regardless of whether they currently hold R-1 Status.” This memo affords R-1 holders greater flexibility in the determination of their five year maximum duration. For R-1 status holders, credit for time spent outside the U.S. can provide a useful means of extending R-1 status. For R-1 employers, the recapture provision allows a R-1 religious worker to work in the U.S. for the full duration of R-1 status, even if the duties or travel of the R-1 religious worker involve time outside the U.S.
How to Document Time Spent Outside the U.S.
Any time spent outside of the U.S. is available for re-capture, regardless of the reason; however, documentation which demonstrates the entire period(s) of stay outside the U.S. is required. While the USCIS memo notes that the burden of proof rests with the petitioner filing on behalf of the R-1 individual, it acknowledges that the “R-1 immigrant is in the best position to organize and submit evidence of his or her departures from and readmissions to the United States.” This documentation can include photocopies of passport stamps, I-94 arrival/departure cards, plane tickets, and receipts for purchases made outside the U.S. The non-immigrant should be able to establish that he or she was outside the U.S. during all of the days submitted for re-capture.