Brief Trips to the U.S. and Foreign Residency for New 6-year H-1B Term
As many of our clients and readers know, the H-1B program allows stay in the U.S. on H or L status of up to six years. Time spent abroad during this period may be “recaptured” and added towards the six years of H-1B time.
However, many foreign nationals who are not eligible to extend their H-1B term past the 6th year based on pending PERM labor certification or approved I-140 immigrant petition are limited from being employed in the U.S. pursuant to H-1B status unless they spent at least one continuous year abroad before they are counted under the H-1B cap again and given another 6-year H-1B term.
The relevant rule is 8 CFR §214.2(h)(13)(i)(B) which states:
When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15) (H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. The petitioner shall provide information about the alien’s employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to spend time abroad.
Recently, the USCIS has confirmed this but has reiterated the point that any stay in the U.S. which is not a brief business or pleasure trip will not only not count towards meeting the one-year foreign residency requirement, but would also reset the one-year clock.
The question then becomes what is a brief business or pleasure trip to the U.S. Unfortunately, no definition has been provided by USCIS, but generally a common-sense approach may be helpful. If the trip to the U.S. contemplates employment, longer stay or is generally one which would require a visa other than business or tourist (B1/B2) visa, then it may be considered “not brief trip” and would reset the clock. Of course, each trip would vary in its duration and circumstances, so we are happy to help our clients and readers when they are unsure whether their U.S. trip may reset the one-year foreign residency clock for new 6-year H-1B term purposes.
