H-1B, L-1A, and L-1B classifications have maximum periods of stay in the United States of six, seven, and five years, respectively.
Before an employee reaches the maximum period of stay in H-1B or L-1 status, an employer may request, in an extension filing, that time spent outside the United States be added back to the employee’s maximum period. The recaptured time recalculates and extends the employee’s available period of stay.
H-1B status may be extended beyond six years when an employer is pursuing employment-based permanent residence for an employee and has taken certain timely steps. While H-1B status can offer options beyond the maximum period, L-1 status does not provide the same flexibility.
Once a person in L-1A or L-1B status reaches the maximum period of stay, they generally cannot obtain L-1A or L-1B status again until they have spent a full year outside the United States. This may also apply to H-1B status when no option exists to extend beyond six years. If the employment is subject to a cap, an individual seeking H-1B status may need to participate in the H-1B lottery again.
Recapturing time spent outside the United States
To request unused time back for H-1B or L-1 purposes, an employee must provide independent documentary evidence of departures from and reentries to the United States. Only full days—24-hour periods—spent outside the United States may be recaptured.
Evidence may include official travel history from U.S. Customs and Border Protection, I-94 records, passport admission stamps, airline tickets or itineraries, frequent-traveler records, hotel records, and travel receipts. A detailed chart of time spent outside the United States may help the agency review the request. Employers should encourage employees to preserve travel records before traveling.
Best practices for avoiding problems when recapturing time
It is prudent not to rely only on the travel history available through the CBP website because it may contain errors or incomplete information. Employees should keep their own record of travel outside the United States regardless of the reason for the trip.
When filing Form I-129 to extend an employee’s stay, an employer should pay close attention to Section 1 of the L supplement, where periods during which the employee was physically present in the United States in H or L classification must be reported.
The relationship between H classification and labor certification
H classification generally allows a maximum stay of six years. However, an extension may be possible when the employer has taken concrete steps to pursue employment-based permanent residence for the employee.
Under the American Competitiveness in the Twenty-First Century Act, two extension options may be available. First, USCIS may grant one-year extensions beyond six years when the employer has filed a labor certification application with the Department of Labor or Form I-140 with USCIS. The applicable statutory requirements generally require one of these actions to have occurred by the employee’s fifth year in H classification. Second, the employer may request three-year extensions after USCIS approves Form I-140 when the beneficiary is subject to delays caused by visa-number limits. These issues can be complicated, so employers and employees should seek advice tailored to their circumstances.