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H-1B Spouse's Dependent Time Does Not Count Towards The 6-Year H-1B Limit

by Cyrus D. Mehta

In a positive development, the US Citizenship and Immigration Services (USCIS) issued a Memo clarifying that time spent as a dependent spouse of an H-1B or L-1 visa holder does not count against the maximum allowable periods of stay available to principal visa holders.

The Memo issued by Michael Aytes, Associate Director, Domestic Operations, USCIS, dated December 5, 2006 provides much needed guidance on time periods in H-1B as well as the accompanying dependant status. The Memo addresses three important issues.

A. Decoupling H-4 and L-2 Time from H-1B and L-1 Time

Prior to the issuance of the Memo, it was unclear whether time spent in H-4 and L-2 (spouses of H-1B and L-1 principal visa holders) counted against the maximum period of time available to the principal nonimmigrant visa holder. The maximum allowable period in H-1B status is 6 years; for L-1A status, it is 7 years and for L-1B it is 5 years.

The Memo now clarifies that any time spent in H-4 or L-2 status will not count against the maximum period of time applicable to the principal visa holder. For example, a spouse who has spent four years in H-4 dependent status and who converts to H-1B status will be entitled to the maximum period applicable to the H-1B classification, which is 6 years. Prior to the Memo, this individual may have been approved in H-1B status for only two years.

The Memo indicates that the policy behind this clarification is to permit family unity by allowing each qualified spouse the opportunity to spend six-years in H-1B status, while allowing the other spouse to remain as an H-4 or L-2 dependant status. The new policy is more beneficial to H-4 spouses as they are unable to work unlike an L-2 spouse. Thus, a spouse in H-4 status who can be employed in the US must convert to an H-1B visa status, if he or she is eligible under the H-1B visa rules. Under the new policy, this spouse will now be accorded the full 6 years on the H-1B visa regardless of the time that he or she spent in the prior dependent H-4 status.

The Memo cautions that USCIS may still limit, deny or revoke any stay in H-4 or L-2 status if the intention is to merely “park” the dependent family members in the US for extended periods of time while the principal nonimmigrant is absent from the US. Such a situation will arise when the dependant family members spend all their time in the US for schooling or other arrangements while the principal spends most of his time overseas. On the other hand, the Memo notes that an H-1B or L-1 worker who appropriately brings the family to the US may from time to time be stationed temporarily outside the US while leaving the family in the US for schooling or similar arrangement.

B. Periods of Stay in H-1B Status Beyond the Six Year Maximum

Section 106 of the American Competitiveness Act in the 21st Century Act (AC21) allows for an extension of the 6-year maximum eligibility period in H-1B status provided a labor certification application or an immigrant visa petition (Form I-140) was filed one-year prior to the commencement of the 6th-year. Similarly, Section 104(c) of AC21 allows for 3-year extensions beyond the 6-year if the individual has an approved labor certification application and an approved Form I-140, but cannot apply for adjustment of status because of the retrogression in the employment-based visa numbers. Both these sections use the term “extension of stay,” and prior to the issuance of the Memo, it was unclear whether an individual could seek an extension beyond the 6th-year if he or she was not at that time maintaining H-1B status.

The Memo now clarifies that though both provisions of AC21 refer to the term “extension of stay,” eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the US. Individuals who are eligible for the 7th-year extension may be granted an extension of stay regardless of whether they are currently in the US or abroad and regardless of whether they currently hold H-1B status.

Thus, someone who is “out of status” as the beneficiary of an H-1B visa petition, due to a lay-off, and who now finds new employment, can still apply for the H-1B 7th-year (under Section 106 of AC21) provided a labor certification was filed on behalf of this person before the commencement of the 6th H-1B year. Of course, this person would probably need to proceed overseas for consular processing to obtain the 7th-year H-1B visa stamp as he or she is not eligible for an extension of status.

C. H-1B “Remainder” Option

The final portion of the Memo deals with situations where a person has been in the US for less than 6 years in H-1B status but has spent more than one year outside the US. Prior to the Memo, this individual would need to seek a new H-1B petition and request an additional six years. Unfortunately, since the H-1b Cap has been reached within a few months of the start of the new fiscal year in recent years, a new petition would not be approvable unless the person filed the petition before the expiration of the new Fiscal Year H-1B cap.

The Memo resolves this problem. It refers to Section 212(g)(7) of the Immigration and Nationality Act, which essentially states that a person who has already been counted for an H-1B visa will not be counted again unless he or she would be eligible for another six years of authorized admission. The USCIS, through this Memo, broadly interprets Section 214(g)(7) by allowing an H-1B nonimmigrant in the above situation 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. This choice is not available for those who have spent less than six years in H-1B status and have not been absent for less than one year. Such a person would clearly not be eligible for a new 6-year period of time and may only seek admission for the remainder of the H-1B time.

Accordingly, the new interpretation only applies to those who have spent more than one year overseas after spending less than six years in H-1B status within the US. If a person is confronted with the H-1B cap, he or she can opt, under the new policy, to return to the US for the remainder of the time rather than seek a new 6 years.

The Memo, however, fails to address a scenario where a person is petitioned for an H-1B visa while still overseas and never enters the US under the approved H-1B petition. Such a situation may arise when this individual’s job offer is rescinded prior to his or her entry into the US. Is such an individual subject to the H-1B cap if he or she finds a new employer to file another H-1B petition for the H-1B cap? While the Memo does not cover this scenario, it can be argued that such a person has already been counted under Section 214(g)(4) and can be sponsored a second time around for an H-1B visa even after the Fiscal Year H-1B Cap has been reached.

This article originally appeared on on December 22, 2006.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Past Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.