The USCIS has recently issued a Policy Memorandum outlining the procedure to be used for recapturing time spent outside the US by R-1 nonimmigrants when seeking an extension of their R nonimmigrant status.
The R-1 nonimmigrant classification is for aliens seeking to enter the US solely to work as a minister or in a qualifying religious occupation or vocation. Regulations provide that generally an alien who has spent 5 years in the US in R-1 nonimmigrant status may not be readmitted to or receive an extension of stay in the US under the R classification unless he or she has resided abroad and has been physically present outside the US for the immediate prior year. In calculating the 5-year maximum period of stay, USCIS has so far, not subtracted the time in which the R-1 religious worker was traveling or residing outside of the US following his or her initial admission in R-1 status.
Under the new Memorandum, USCIS has indicated that it is extending the recapture policy, under which nonimmigrant aliens and their dependents may recapture time spent outside of the US when calculating their maximum period of authorized stay, to the R-1 nonimmigrant classification. Accordingly, USCIS has indicated that as a matter of policy, it will count only the time spent physically in the US in valid R-1 status towards the 5-year maximum period of stay; and when requesting an extension, the petitioner may request that full calendar days spent outside the US during the period of petition validity be recaptured and added back to the alienís total maximum period of stay, regardless of whether they are currently in the US or abroad and regardless of whether they currently hold R-1 status. The reason for the absence is not relevant and any trip of at least one 24-hour calendar day outside the US for any purpose can be recaptured.
Hence, as per the guidance provided in the Memorandum any days spent outside of the US during the validity period of an R-1 petition will not be counted toward the maximum period of stay in the US in R-1 status, provided that the alien remains eligible for the classification and is able to submit independent documentary evidence establishing that he or she was in fact physically outside of the US during the days for which he or she is seeking recapture. The Memorandum makes it clear that the burden of proof rests with the petitioner to establish the alienís eligibility for any recapture benefits.
Contact VisaPro if you have any queries about the R-1 visa or the new USCIS Memorandum regarding recapture of time spent outside the US by R-1 religious workers.