On December 5, 2006, USCIS issued a memorandum that contains significant changes in policy. The memorandum addresses the effect of prior stay in H-4 or L-2 dependent status, the ability to seek extension of H-1B status beyond the 6-year maximum, and the effect of a one-year absence from the United States by a person who previously held H-1B status for less than 6 years. First, the new policy specifies that time spent in the United States as an H-4 or L-2 dependent no longer counts against the maximum allowable period of stay if the dependent subsequently obtains H-1B or L-1 status. For example, a person who spent four years in H-4 status as a dependent and who then becomes an H-1B worker will be entitled to the full 6-year period of stay in H-1B status, beginning at the commencement of the person’s H-1B status. The prior H-4 stay will no longer count against the 6-year limit. Similarly, a person who had L-2 dependent status and became an L- 1A or L-1B worker will not have the time spent as an L-2 dependent counted against the maximum time available to L-1A or L-1B aliens (i.e., the 7- and 5-year maximum, respectively).

Second, H-1B workers who are eligible for the 7th year extension of stay pursuant to the rules set forth in the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), do not necessarily have to be in H-1B status when requesting such an “extension of stay.” Specifically, eligible persons may be granted such an extension beyond the 6-year limitation whether or not they are currently in the United States or currently hold H-1B status. For example, the 7th year extension petition could be filed on behalf of an H-1B worker who is temporarily outside the United States, provided that he/she meets the AC21 eligibility criteria (e.g., a beneficiary of a labor certification application filed more than 365 days before his/her 6-year limit of stay).

Finally, the new policy provides two options to a person who spent more than one year outside the United States before exhausting his or her entire 6-year period of stay in H-1B status. Specifically, such person may elect to either: 1) seek re-admission for the duration of time remaining under the initial 6-year period; or 2) apply for admission as a new H-1B worker who is entitled to a new 6-year period of total stay. In the first option, the person would not be subject to the annual H-1B cap (provided that his/her prior H-1B employment involved a non-exempt employer) but may only remain in the United States for the remainder of his/her original 6-year term (i.e. for a total of six years minus the amount of time that the person previously spent in the United States in H-1B status). By choosing the second option, the person would be eligible for a new full 6-year maximum period of stay in H-1B status but he/she also would be subject to the annual H-1B cap for the current fiscal year.

The memorandum, with amendments to the USCIS Adjudicator’s Field Manual, is available at http://www.uscis.gov/files/pressrelease/PeriodsofAdm120506.pdf.