USCIS Memo on H and L Timing & H1B/H-4 Decoupling
Posted Dec 20, 2006; updated Nov 07, 2008
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Since 1994, we at the Murthy Law Firm (originally known as The Law Office of Sheela Murthy) have been providing useful information to our readers on matters of U.S. immigration law, as well as regulations and procedures. While some aspects of immigration have changed in significant ways in the years since we began publishing our articles, there is still much that remains the same. From time to time, we will select articles that are still relevant, to which we often refer our clients today.
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The USCIS has just released a memo dated December 5, 2006, that makes significant positive changes to the counting of time for H1Bs, H-4s, L-1s, and L-2s. This Memo addresses three separate issues. It decouples time spent in H-4 or L-2 status from the time limits spent in H1B or L-1 status, respectively. It permits extensions beyond the six-year H1B limit even when an individual has not been maintaining H1B status. Finally, it permits a person who departs the U.S. for more than a year prior to completion of the six years in H1B status to return for the time remaining of that six-year H1B period without again being subject to the H1B cap. For all of us at the Murthy Law Firm, our clients, and for most MurthyDotCom and MurthyBulletin readers, as well, this is a wonderful gift to receive from the U.S. Citizenship and Immigration Services (USCIS) during the holiday season!
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Decoupling Time in H-4 or L-2 Status from H1B or L-1 Status, Respectively
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The USCIS has confirmed that the time one spends in dependent status (either H-4 or L-2) DOES NOT COUNT against the time limits under H1B or L-1 status. This is a significant benefit to families in which either individual is qualified for an H1B or L-1, but both do not have jobs at the same time. This interpretation allows people to spend the permitted maximum time in H1B or L-1 status, even if they have also spent some time in H-4 or L-2 dependant status. Now, if an H-4 receives a job four years after coming to the U.S. in H-4 status, for example, s/he is eligible for a full six years of H1B status, rather than only the balance of the two years. There are many situations in which this will be helpful, including cases that have minor children in H-4 status, who exhaust the six years before attaining the age of 21 years. Now such individuals would be allowed to work for the entire six years in H1B status. The H-4's petition for H1B status would be subject to H1B-cap limitations, unless it fits within one of the standard H1B-cap exemptions.
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H1B Extension Allowed Even if not Maintaining H1B Status
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The memo also confirms that an individual who is beyond the six years of H1B status may file for a 7^th-year H1B extension under AC21, even if s/he is not in the U.S., or if s/he is in the U.S. but not maintaining H1B status. This was previously an issue because of the wording of the provisions for extensions beyond the six-year limitation, which used the term "extension," implying that the individual would have to be maintaining H1B status, or at least be in a nonimmigrant status, when the request was made. The memo allows for a more expansive reading and will permit a 7^th-year extension as long as the individual is eligible for more H1B time. This, too, will be helpful in many situations.
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Travel Abroad for One Year+ Allows Reentry for Balance of H1B Time
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This portion of the memo addresses those situations in which a person has been in H1B status for less than six years and is outside the U.S. for more than a year. Previously, in such a case one was eligible for another six years of H1B status, but in order to claim another six years the H1B beneficiary would have had to be counted against the cap. This created significant timing complications and delays for the H1B employer and employee, while a person who visited the U.S. for one day in the prior year would be able to enter in H1B status and continue working under the existing H1B petition approval. The memo addresses this situation by permitting such an individual to return for the unused portion of the H1B time (the remainder) without being counted against the cap. One may now choose whether to come to the U.S. for the balance of the unused H1B time or to claim the permitted new six-year period, which would require that a cap number be available (unless the petition otherwise would qualify as cap exempt.)
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Conclusion
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These are significant changes to current policy in this recent USCIS memo. Many of these matters have been reported in the MurthyBulletin a year ago as likely to pass. We are delighted to share this good news with our readers now. As with all potential immigration benefits, it is best to speak to an experienced, qualified attorney about case specifics to determine how these benefits may apply to you. These changes are extremely positive, and we at the Murthy Law Firm appreciate the effort on the part of the USCIS to get the word out during this holiday season.