January 12, 2007

Period of Admission for H-4s and L-2s
USCIS Memo on Period of Admission for H-4s and L-2s

Michael Aytes, USCIS Associate Director, Domestic Operations, has issued an memo regarding periods of admission for H-4s or L-2s and applicants for H-1B status beyond the six-year maximum, as well as the maximum period of admission for H-1Bs who have been out of the U.S. for more than 1 year but were not in H-1B status for a full 6 years.

The memo provides guidance in three areas regarding how adjudicators should determine periods of admissions for an alien. Specifically, the memo:

• Clarifies that time spent as an H-4 and L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B and L-1 status.
  
  
• Clarifies that H-1B aliens, who qualify under AC-21 Section 106(a) and (c), need not be in H-1B status when requesting an additional period of stay beyond the six year maximum. Therefore, aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they currently in the United States or abroad and regardless of whether they currently hold H-1B status.
  
  
• Clarifies how to determine the maximum period of admission in H-1B status for a beneficiary who was in the United States in valid H-1B status for less than the six year period maximum period of admission, but who has since been outside the US for more than one year. Pending AC21 regulations, USCIS for now will allow an alien in this situation described 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.

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