Did any one recently claimed vacation days for H1-B extension? Please help

R

Raju678

Registered Users (C)
Hey Guys,
Did any one recently claimed vacation days for H1-B extension? I have been reading old posts and people have varied experiences in this matter.

I have been working with the same company for 5 years and 8 months and I have almost 5 months of time when I was in India. The only record I can produce is the Arrival/Departure stamps. Since my H1 states an hourly salary rather than the per year salary, I can argue that I was not paid while I was in India.

Any comments will be greatly appriciated.
 
I claimed business days and was denied. You could try with your evidences, specially that you were not working during that time....and your arrival/departure records may help. INS is very inconsistent in this matter...but it's worth a try anyway. so good luck!!
 
Thanks a lot for the information. I spoke to my attorney and we will submit the paperwork this week. He said that we'll try but there is no rule stating that "INS has to do it" I'll put the results back here.

Thanks
 
Just spoke with an Attorney...

as per this Attorney, the apparent 'Rule of Thumb' is, INS/USCIS generally approves any thing over 4 weeks. If the time is less then it is not certain, and they may or may not.


HTH,
 
HTH,
Do you know if there is a rule as to only the business time or personal vacation time can be claimed under these guidelines. One of the paralegals with my law firm thinks that if the trip is a business related trips then only they can be claimed?

thanks
Raj
 
I am told even vacation time can be claimed...

but the problem is the lack of (exact) regulations...I have heard of a case who apparently claimed 3 weeks (vacation time) per year for 5 years, successfully. This case didn't even fit the 4 weeks at a time rule, but he/she was able to extend stay beyond 6 years for that duration!
 
Re-capturing vacation is invalid

Guys,

I re-captured my vacation time once and the next time I tried the same, they told me that even the previous one was issued in error. As per the CIS officer, it is invalid. I had to convert it to 7th year extension.

It is a unnecessary gamble unless you are not eligible for the 7th extension.
 
URGENT, Please respond ASAP.
HI Raju678,

Can you throw some light here. I am also planning to apply to recapture my stay of 5 months in India. It is not vacation but I have a recorded in my passport those times. My present H1B ends on June 13th '04. I have no option for 7th year since I applied my GC in July'03 so it is not 365 days. Since you are applying to recapture,Can you tell me what documents require and what is the probability/chances inorder to get that time?

I talked to my attorney, she mention we can try but there is no guarantee that we get it , it is all INS call.

I also applying from IOWA and it is pending at Chicago DOL and According to my lawyer it is forward to DOL from state on 12/8/03. BUt the process speed and queries DOL is asking it looks me that it might not happen till June'04, if it comes before that will be fantastic but you never know.

TO BE SAFE SIDE I want to recapture this time. Please share applying details as you know.

Is there any rule that I need to apply for these with in certain dates before expiry as you are aware of?

Thanks
 
At this time, I am also praying that I get approved for this extension. My attorney sent the paperwork today. Since we are applying through premium processing, I'll know in 2 weeks if I get approved or not.


I just read the reply from samnjny: that the reclaim of vacation is invalid: Can some one shed more light on this? I understand that there are no clear guidelines but no one actually said that it could get us in trouble
 
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Recapture of vacation time

Hi Folks,
I recently applied for my H1-B with a recapture of 5 months since I was out of country and in between jobs (vacation).
I could NOT get the time recaptured. I heard previously that you can recapture time while in-between jobs if its more than 4 weeks. I guess that theory was proved wrong!
 
Hello KeenOnGC,

Did you apply for regular H1B extension and recapture at the same time or just recapture only? Were you outside the country just once for 5 months or multiple times with a total of 5 months? Did you receive any RFE for this recatpure? Thanks.
 
Originally posted by tv1
Hello KeenOnGC,

Did you apply for regular H1B extension and recapture at the same time or just recapture only? Were you outside the country just once for 5 months or multiple times with a total of 5 months? Did you receive any RFE for this recatpure? Thanks.
Click to expand...
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I applied for a regular H1-B and recapture at the same time. This is the final year of H1-B, so normally if there is any time that needs to be recaptured, it should be granted at this time.
I was out of the country at one time for 5 months. I did not ask for recapture of other vacation times which were about 15 days typically.

I got my H1-B till June 2004 - June 1998 is when I entered the country. I was expecting the H1-B extension till Nov 2004 - for the 5 months between jobs.

No, I did not receive any RFE for the recapture. The time was just not granted.
 
We successfully got 9-month extension for one of the employee who is working for my friend company without hiring any attorney. Most of the attorney we spoke had negative feeling about the case. Finally we decided to do on our own.

Employee was out of US for 9 months (From March 1999 till Jan 2000) and we drafted letter asking for those months only. His 6th year was expiring in April 2004. We applied for H1-B extension in Feb 2004 with premium processing and approval came sometime in March for another 9 months (till Jan 2005). I was out of US so I don’t know the exact date for approval.
 
Hi usnycus ,

That's really encouraging news. Can you tell me apart from drafting a letter what kind of documentation you guy sent to INS for recapturing. I am planning to recap 5 months of time I was out of USA.

Please can you let me know ASAP.

I am planing to apply this month end or 1st week of april'04 since my 6 yrs are completing by 13th June'04.

Thanks in advance
 
nishlala

We attached documents that are normally submitted with any H1-B extension request. Nothing special beside following employer letter.

----------------------------------------------------------------------------------
January 05, 2004

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Vermont Service Center
75 Lower Welden St.
Saint Albans, Vermont 05479


RE: Application to extend H1-B (Non-Immigrant Temporary Worker) status by ABC Inc. for Mr. XXXXXXXX beyond six year.



Dear Sir or Madam,

This letter is in support of the petition of ABC Inc. to classify Mr. XXXXXXXX as an H1-B non-immigrant temporary worker so that he may assume specialized temporary full-time professional position of programmer/analyst with ABC Inc.

Mr. XXXXXXXX extensive System Analyst/Programmer experience accumulated in last six years working with different employer qualifies him for the offered position. His precise and specific system analyst/programmer knowledge is essential for the growth and development of our organization.

As per United States immigration law, Mr. XXXXXXXX maximum permissible six year H1-B status is expiring in April 2004 and he needs to leave United States for a year to be eligible as a beneficiary of a non-immigrant temporary worker. Mr. XXXXXXXX originally came to United States on April 10, 1998 as a H1-B non-immigrant temporary worker. He worked at different employers during his last five years and nine months in United States as a non-immigrant temporary worker. He also visited and stayed in India for continuous nine months from March 1999 to January 2000. His stay in India for nine months was beyond his control and they were not part of any holiday or vacation. We would like to utilize an option to extend his non-immigrant temporary status for those lost nine months and respectfully request United States Citizen and Immigration Service to consider our request.

In light of this offer of full time professional level employment to Mr. XXXXXXXX, we respectfully request that you process and approve the H1-B temporary worker petition as soon as possible, and that his temporary stay in the United States be extended for period up to nine months from May 2004, until February 2005.

I would really appreciate your effort towards processing of the Application and notifying me accordingly.


Very Truly yours,


Manager
ABC Inc.

----------------------------------------------------------------------------------
 
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Thank you very much

HI usnycus,

That is great detailed info. Thanks a lot for sharing that.

I am planing to file next two weeks as normal process not premium and let you guys know how it go. Any advise further will be help-ful. And really appreciate your help in this regard.

And also I consulted my company attorney she told she will be filing for recapture but she is charging $850 buks as here fees + $130 towards INS fees.

But my company says they file directly thru the software they have in house thru which they filed all H1B's both fresh and extensions and they never had any problem. And I need only spend INS fees and I can save Attorney fees.

But I am kind in confusion which is the best way to file that. Can you shed some light here. As it appears me filing is same in both ways but is there anyadvantage if I file thru attorney in respect of how INS deals the cases?

If both have same effect I can opt for my employer soing filing for me and I need good advise here.

Please I ask you and other guys please advise me right way.

Thanks again for the info and look forward to hear from you all.

nishlala
 
It is not enough just to send the letter and not submit any proof of your being outside the US for any of the days you are attempting to recapture. You must document it thoroughly by literally counting the days spent outside the US and using as proof the various passport stamps documenting the departure and entry dates. Under a recently decided case of Nair v. Coultice, it is possible to recapture ANY number of days an individual was not physically present in the United States.
 
Hi Lana!

Your posting is very interesting. I am trying to recapture some vacation time and all that I have seen posted on the different websites is that it is not consistant whether they give it or not. Some are able to recapture their business time outside the U.S., others only vacation, some both and others none.

Your posting references a legal case, that is the first indication that I have come across that sets a precedence. How old is this case, and can you give some details or give a link?

Regards,

Emil
 
Hi Emil:

The case is fairly recent in that it was decided a couple of years ago and has been cited (at least by me) in all situations where we had attempted to recapture time (all successfully, by the way). Here is the name and citation of the case for your reference. Nair v. Coultice, 162 F. Supp. 2d 1209 (S.D. Calif. 2001)

However, since the California Decision, some practitioners have seen INS requests for information regarding the exact nature of the time spent outside the U.S. The INS has issued decisions against recapture when the agency felt that the time was not sufficiently interruptive of the employee’s H-1B status. In some instances, vacations to the home country are were not considered interruptive, even when the vacations were for a considerable length of time (three or four weeks). Overseas assignments of several weeks’ length, however, are typically considered interruptive of the status. Each situation is considered on its own facts. Employees nearing the end of their time in the U.S. are advised to seek counsel when considering their options.

But I have been successful in strategizing the employees' time to be spent outside the US in such a way as to time the filing of their labor certification and thereby gain them the 365 days from the date of filing the labor certification and the expiration of the H-1B maximum. It is all a matter of planning and strategizing and being persuasive to the INS (now USCIS) in the arguments.

Let me know if you have any additional questions.
 
I agree with Lana. I've done a couple thousand H-1s over the years and I have never failed to reclaim the time spent outside the US (even on vacation). Remember, USCIS may decide a case any way it likes. If the case is erroneously decided you need to either make a request to correct a service error. request reconsideration. or apppeal.

The only way to keep USCIS from denying cases that should be approved is to appeal decisions that are wrong. In this situation, Nair seems to be at least a very persuasive authority. I am not aware of any contradictory court opinions in any other jurisdiction.
 
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