Guidance on H-1B Recapture Filings
October 15th, 2009 by Brian D. Zuccaro
The Vermont Service Center (VSC) has sent out guidance on H-1B recapture filings. The VSC advises that keeping records of of passport stamps and I-94s is important in documenting time spent inside and outside of the U.S.
SRW also includes additional evidence such as plane ticket stubs, travel itineraries and other available evidence.
The guidance provided is cited as AILA InfoNet Doc. No. 09100210:
The Vermont Service Center has cautioned that the DHS electronic system on entries and exits is not always accurate. It is highly recommended that, at a minimum, members provide a detailed list of dates of each exit and re-entry and that this list is backed with copies of CBP issued I-94s and passport exit/entry stamps. However, other forms of objective evidence, including plane tickets and frequent flyer miles, will also be considered.
Remember that under 8 C.F.R. section 214.2(h)(13)(v) recapture is not necessary for certain H-1B visa holders. Specifically, H-1B holders who do not reside continuously in the U.S. and engage in employment that: is seasonally or intermittent; is for an aggregate period of six months or less per year; or is part-time (and the employee resides abroad and regularly commutes to the U.S). In these situations, extensions must clearly demonstrate, that the employee qualifies for the exception to the time limitation. The regulation requires “clear and convincing proof,” such as exit and entry records, copies of tax returns of the employee, and records demonstrating employment abroad.
