Chapter 7 - Period of Stay

A. Maximum Period of Stay

An eligible noncitizen may be admitted as a nonimmigrant religious worker (R-1) or may change status to R-1 nonimmigrant classification for a period of up to 30 months from the date of initial admission.^[1] USCIS may grant one extension for up to 30 months, but with the total period of stay not to exceed the statutory maximum of 5 years (60 months) if the R-1 nonimmigrant is otherwise eligible.^[2]

An R-1 nonimmigrant may be subject to removal if he or she violates the terms of his or her status, such as remaining in the United States longer than the period of his or her authorized stay.

B. Exceptions to Limitation on Total Stay^[3]

A beneficiary who has spent 5 years in the United States in R-1 nonimmigrant status may not be readmitted to or receive an extension of stay in the United States under the R-1 nonimmigrant classification, unless such a beneficiary subsequently has resided abroad and been physically present outside the United States for the immediate prior year. However, this 5-year limitation does not apply to beneficiaries who:

• Did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year; or

• Reside abroad and regularly commute to the United States to engage in part-time employment.

Petitioners and beneficiaries must meet all qualifications for the exception to the limitation on total stay, and must provide clear and convincing evidence that they qualify for the exception. Such proof may include arrival and departure records, transcripts of processed income tax returns, and records of employment abroad.

C. Recapture Time

USCIS only counts time physically spent in the United States in the R-1 nonimmigrant status towards the maximum 5 years of authorized stay. Officers should count only time spent physically in the United States in valid R-1 status toward the 5-year maximum period of stay.

When requesting an extension, the petitioner, on behalf of the R-1 nonimmigrant, may request that full calendar days spent outside the United States during the period of petition validity be recaptured and added back to his or her remainder of the total maximum period of stay, regardless of whether the R-1 nonimmigrant is currently in the United States or abroad and regardless of whether he or she currently holds R-1 nonimmigrant status.

It is the burden of the petitioner, on behalf of the beneficiary, to demonstrate continuing eligibility for the classification and that the beneficiary is entitled to recapture time with appropriate evidence. The reason for the absence is not relevant to whether the time may be recaptured. Any trip of at least one 24-hour calendar day outside the United States for any purpose, personal or professional, can be recaptured.

1. Evidence

The burden of proof remains with the R-1 petitioner, on behalf of the beneficiary, to submit evidence documenting periods of physical presence outside the United States when seeking an extension of petition validity and extension of stay as an R-1 nonimmigrant. The R-1 nonimmigrant is in the best position to organize and submit evidence of his or her departures from and readmissions to the United States. While a summary, charts of travel, or both are often submitted to facilitate review of the accompanying documentation, independent documentary evidence, such as photocopies of passport stamps, Arrival/Departure Records (Form I-94), and plane tickets establishing that the R-1 beneficiary was outside the United States during all of the days, weeks, or months that he or she seeks to recapture is always required.

The fact that the burden may not be met for some claimed periods generally has no bearing on other claimed periods for which the burden has been met. Any periods for which the burden has been met may be added to the eligible period of admission upon approval of the application for extension of status. An R-1 beneficiary may not be granted an extension of stay for periods that are not supported by independent documentary evidence. It is not necessary to issue a request for evidence (RFE) for any claimed periods unsupported by independent documentary evidence.

2. Applicability to R-2 Dependents

The status of an R-2 dependent of a principal R-1 nonimmigrant is subject to the same period of admission and limitations as the principal beneficiary, regardless of the time such spouse and children may have spent in the United States in R-2 status.^[4] For example, if an R-1 nonimmigrant is able to recapture a 2-week missionary trip abroad, then his or her R-2 dependents, if seeking an extension of stay, should be given an extension of stay up to the new expiration of the R-1 nonimmigrant’s period of stay.

3. Seasonal or Intermittent Employment Exception

An R-1 nonimmigrant is eligible for the exception to the limitation of stay requirements by demonstrating that he or she:

• Did not reside continually in the United States and that his or her employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year; or

• Resides abroad and regularly commutes to the United States to engage in part-time employment.

To qualify for this exception, the petitioner and the beneficiary must provide clear and convincing proof that the beneficiary qualifies for such an exception. Such proof generally consists of evidence such as: Arrival/Departure Records (Form I-94), transcripts of processed income tax returns, and records of employment abroad.

Footnotes

[^ 1] See 8 CFR 214.2(r)(4).

[^ 2] See 8 CFR 214.2(r)(5).

[^ 3] See 8 CFR 214.2(r)(6).

[^ 4] See 8 CFR 214.2(r)(4)(ii)(A).