Dependent Family for Intermittent Employees May be Limited
Posted Dec 29, 2006
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This further update on the December 5, 2006 Guidance Memo issued by Michael Aytes, Associate Director, Domestic Operations of the USCIS, is for the benefit of MurthyDotCom and MurthyBulletin readers. In addition to the topics raised in NewsFlash! USCIS Memo on H and L Timing and H1/H4 Decoupling this Memo clarifies the time that H-4 and L-2 dependent spouses and children of H1B and L-1 workers are allowed to stay in the United States. The Memo and the related updates to the USCIS Adjudicator's Field Manual emphasize that the stays of the H-4 and L-2 dependents are for the purpose of accompanying the principal foreign nationals while they are in the U.S. Thus, the stays for H-4 and L-2 dependents of H1B and L-1 workers who work occasionally or intermittently in the U.S. may be limited to align with the stays of these principals.
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"Parking" for Dependent Family Members Discouraged
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The purpose of the H-4 and L-2 categories is to allow for family unity with the H1B and L-1 principal visa holders, considered principal or primary for immigration purposes. Thus, the USCIS can limit the eligibility of dependents in H-4 or L-2 categories, if the primary family member only spends limited time in the United States. There have been instances in which the H1B or L-1 principal foreign national has spent very limited time in the U.S., leaving the spouse and/or children to live in the U.S. on a full-time basis in H-4 or L-2 status. This is referred to as "parking" the family members in the U.S. and the USCIS discourages this practice.
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Routine Travel Still Permitted for H1B or L-1 Principal
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It is not necessary for the entire family to leave the U.S. each time the H1B (or L-1) principal travels abroad for work or pleasure. If the H1B (or L-1) primarily resides in the United States, and brings his/her family to the U.S. in H-4 (or L-2) status, there may be times when the primary beneficiary needs to travel abroad. This is permitted. When there is routine work or personal travel, it is permissible to leave the family in the United States. This is allowed in order to avoid disruption of work, school, and normal life. There is not a limit on time or occurrence, and this is not a new rule. We at the Murthy Law Firm generally suggest a common-sense approach to this matter, asking where the primary family member really is living and working, even if s/he is temporarily abroad.
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Limitation Enforceable by USCIS, Ports of Entry, and Consulates
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The "no parking" rule can be enforced by the USCIS, as well as at the Ports of Entry, and the consulates. Those seeking dependent statuses should be prepared to respond to any questions or concerns on this issue, particularly if the H1B's (or L-1's) work in the U.S. is limited, intermittent, or if it requires frequent trips abroad in furtherance of the U.S. job.
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Conclusion
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Although this has always been the rule, since there was no prior, specific, written guidance on this matter, it was a potential problem. It is hoped that the Aytes December 2006 Memo will provide the needed clarification. There are strategies for documenting such a situation that one may choose to discuss with a knowledgeable, qualified immigration attorney.
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