Under present law, U.S.C.I.S. allows the recapturing of time for every day that the beneficiary is not in the United States for purposes of H-1B specialty occupation alien and L-1 intra-company transferee eligibility. H-1B holders are held to a limit of 6 years, L-1A holders (executives and managers) to 7 years, and L-1B holders (employees of specialized knowledge) to 5 years. AILA suggested in the 5/13/15 teleconference with SCOPS that the Customs and Border Protection (CBP) database can be a very useful resource to evidence days spent outside the U. S. and asked whether the CBP travel history is valid evidence for travel outside the U. S. – to which USCIS responded that it does not require particular evidence and CBP travel history is an example of the type of evidence acceptable to prove recapture time but U.S.C.I.S. uses the totality of circumstances to make a determination. In the past, persons attempting to prove that they had extra time to recapture would come up with a variety of evidence such as copies of all passports, I-94’s, affidavits, and other proof that they were out of the country during the time that they wished to recapture. While not a complete answer, the use of the CBP travel history would serve as one more proof that the beneficiary was not in the U. S. during the time sought to be recaptured.

Reprinted with permission.

About The Author

Alan Lee, Esq. The author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

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