USCIS Memo Time in H4 and L2 Status No Longer Counts Towards H1 or L1 Time

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USCIS Memo Time in H4 and L2 Status No Longer Counts Towards H1 or L1 Time

A recent memo from CIS states that time spent by a spouse in H4 or L2 status will not be counted against the maximum time if they find employment and change to H1 or L1 Status. It further states that qualifying H-1B aliens need not be in H-1B status when requesting an extension beyond the six-year maximum and that H1B aliens who have been outside the US for more than one year may choose to use the “remainder” of an initial six year period or elect to start a new six year period.

Periods of time spent in the U.S. as H-4 or L-2 dependents do not count against time limitations.

As many of you are already aware, a foreign national generally may only be admitted in H-1B status for a maximum period of six years. (USCIS) clarified that time spent in H-4 dependent status does not count toward the maximum period of six years available to principles in H-1B.

A foreign national spouse present in the United States in H-4 status now who has or will have an H-1B employment opportunity, their time spent in H-4 status will not be counted towards their H-1B six year period of stay.

For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. Note that, upon the switch, the new “principal alien” would be subject to the H-1B cap if not independently exempt.

Also, in light of the similar statutory provision set forth in INA 214(d) applicable to L-1 and L-2 aliens, the memorandum provides that time an alien has spent time in L-2 dependent status will not count against the time available to the alien in L-1A or L-1B status.

A former H-1B nonimmigrant need not be in H-1B status, nor even in the U.S., to request a period of H-1B stay

A qualified alien need not be in H-1B status in order to benefit from this memo. The alien may obtain such additional periods of H-1B admission through a petition to change status from another nonimmigrant classification, or through H-1B visa issuance at a U.S. consulate (unless visa exempt) and admission from abroad.

Persons who had been in the U.S. in H-1B status for less than six years and who have been outside the U.S. for more than one year may choose to use the “remainder” of the initial six-year period, or may elect to start a new six-year period.

For example an engineer who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks re-admission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. The USCIS for now will allow the engineer in the situation described above to elect either (1) to be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted or (2) seek to be admitted as a “new” H-1B alien subject to the H-1B cap.

If you or your spouse have any questions regarding the above situation, please contact our office, and we will be happy to assist you. Thank you.

Sincerely,
Litwin & Smith