Some immigrants are not permitted to file a new petition (such as an R1 petition) until they have lived outside of the US for a certain length of time. USCIS policy, prior to this memo, did provide guidance (permit) H-1B and L-1 nonimmigrant foreign nationals (and their dependents) to recapture the time they spent outside of America when calculating the time they could stay in America.
Recapture is aimed at allowing a qualifying nonimmigrant to spend the most time in the US that his/her classification allows – before the requirement to leave the country for a set time begins – in order to file the subsequent petition.
USCIS has decided that this recapture policy should apply to the R-1 nonimmigrant classification. USCIS has also decided that R-1 dependents (spouse and children)) can use recapture for their R-2 stays.
Recapture is Consistent with R-1 Statute and Regulations.
The Immigration and Nationality Act (INA) Section 101(a)(15)(R) provides that religious workers can obtain R-1 status for an initial time of 30 months from the time of admission (lawful entry into the United States).
The 30-month time frame can be extended provided that total time doesn’t exceed 5 years. The INA also requires that once the 5-year period is over, the alien must reside abroad/outside of the US before he/she can reapply. USCIS now decides that only “time actually spent in the United States in R-1 status is to be counted towards the maximum 5 years of authorized stay.”
Recapture is Consistent with the Purpose and Intent of the R-1 Classification
The USCIS recognizes that, after admission into the US, the R-1 nonimmigrant may need to leave America during the approved stay period for “personal or professional” reasons. Additionally, “It is not always the case that the petitioning organization will cease to need the religious worker at exactly the same date as the expiration of the period of stay that was initially requested on the petition.”
Thus, it should benefit both the religious organization that files the petition and R-1 beneficiary if “the petitioner is able to request that the alien beneficiary’s stay be extended to ‘recapture’ any time the alien spent outside of the United States during the approved period of stay.