USCIS Memo dated 12/05/2006 on periods of H & L admissions.
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> USCIS Memo dated 12/05/2006 on periods of H & L admissions.
To: REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
cc: OFFICE OF INTERNATIONAL OPERATIONS
OFFICE OF COMMUNICATIONS
DISTRICT DIRECTORS
From: Michael Aytes /s/
Associate Director, Domestic Operations
Date: December 5, 2006
Re: Guidance on Determining Periods of Admission for Aliens Previously in
H-4 or L-2 Status; Aliens Applying for Additional Periods of Admission beyond
the H-1B Six Year Maximum; and Aliens Who Have Not Exhausted the Six-Year
Maximum But Who Have Been Absent from the United States for Over One Year.
Revisions to Adjudicator’s Field Manual (AFM) Chapters 31.2(d), 31.3(g) and
32.6 (AFM Update 06-29)
I. Purpose
This memorandum provides guidance in three areas regarding how adjudicators
should determine periods of admissions for an alien. Specifically, this
memorandum:
- 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 American Competitiveness
in the Twenty-First Century Act of 2000 (AC21) (Pub.L.106-313) section
106(a) and (c), need not be in H-1B status when requesting an additional
period of stay beyond the six year maximum.
- 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 maximum period of admission, but who has since
been outside the United States for more than one year.
An alien seeking H-1B or L-1 status (or corresponding derivative status) in
light of these clarifications still must meet all of the substantive
requirements for those classifications and is subject to the normal rules
concerning maintenance of status.
Questions regarding this memorandum should be directed through appropriate
channels.
II. Field Guidance
An alien may be admitted to the United States in H-1B status for a maximum
period of six years and in L-1 status for a maximum period of five (specialized
knowledge workers) or seven years (managers and executives). See INA 214(g)(4)
and 214(c)(2)(D) of the Immigration and Nationality Act (“INA” or “Act”). At the
end of the maximum period, the alien must either change to a different status
(other than from H to L or from L to H) or depart the United States. USCIS
regulations provide that an alien who has been outside the United States for at
least one year may be eligible for a new six-year period of admission in H-1B
status or a new five-year or seven-year period in L-1 status. See 8 CFR 214.2(h)
(13)(iii)(A) and 214.2(l)(12).
A. Decoupling H-4 and L-2 Time from H-1B and L-1 Time
USCIS reviewed the current INA provisions governing the H classifications as
well as its governing regulations and policy guidance. Neither the statute nor
regulations addresses whether time spent in H-4 status counts against the
six-year maximum period of admission available to an alien seeking H-1B status.
Further, USCIS has not issued any recent policy guidance that clarifies the
issue.
USCIS, therefore, is now clarifying that any time spent in H-4 status will
not count against the six-year maximum period of admission applicable to H-1B
aliens. Thus, an alien who was previously an H-4 dependent and subsequently
becomes an H-1B principal will be entitled to the maximum period of stay
applicable to the classification.
USCIS finds this approach most consistent with the statutory framework, which
allows eligible aliens to obtain a full six-year admission period as an H-1B
alien. Further, from a policy perspective, this interpretation promotes family
unity by affording each qualified spouse the opportunity to spend six-years in
H-1B status while allowing the other spouse to remain as an H-4 dependent and
without undermining the Congressional intent to limit a principal alien's
ability to work in a specialty occupation for six-year maximum period. For
example, a husband and wife who come to the United States as a principal H-1B
and dependent H-4 spouse may maintain status for six years, and then change
status to H-4 and H-1B respectively. Note that, upon the switch, the new
“principal alien” would be subject to the H-1B cap if not independently exempt.
USCIS will consider, in the context of any applications for change of status
from H-4 to H-1B, whether the H-4 alien complied with the requirements of
accompanying or joining the H-1B alien, and whether the alien otherwise
maintained valid nonimmigrant status.
Also, in light of the similar statutory provision set forth in INA 214(d)
applicable to L-1 and L-2 aliens, this memorandum provides that time an alien
has spent time in L-2 dependent status will not count against the time available
to the alien in L-1A or L-1B status.
USCIS may limit, deny or revoke on notice any stay for an H-4 or L-2
dependent that is not primarily intended for the purpose of being with the
principal worker in the United States. A spouse or child may be required to show
that his or her requested stay is not intended to evade the normal requirements
for nonimmigrant classification that otherwise would apply when the principal
alien is absent from the United States. This policy is meant to prevent an H-1B
or L-1 alien from using only occasional work visits to the United States to
“park” dependent family members in the United States for extended periods of
time while the principal is normally absent. Note, an H-1B or L-1 worker who
appropriately brings his or her family to the United States may from time to
time be stationed temporarily outside the United States while leaving the family
in the United States for purposes of continuity in schooling or similar
arrangements.
B. Periods of Stay in H-1B Status Beyond the Six Year Maximum
In sections 106 and 104(c) of AC21, Congress provided exemptions to the
six-year maximum period of stay rules for certain H-1B aliens who were being
sponsored by employers for permanent residence and were subject to lengthy
processing delays. Though both provisions of AC21 use the term “extension of
stay,” eligibility for the exemptions is not restricted solely to requests for
extensions of stay while in the United States. Aliens who are eligible for the
7th year extension may be granted an extension of stay regardless of whether
they are currently in the United States or abroad and regardless of whether they
currently hold H-1B status. Further, in examining eligibility for the 7th year
extension, USCIS will focus on whether the alien is eligible for an additional
period of admission in H-1B status, rather than whether the alien is currently
in H-1B status that is about to expire and seeking an extension of that status
in the United States pursuant to 8 CFR 214.1(c).
Note: The burden of proof rests with the petitioner and alien to establish
his or her eligibility for any additional periods of stay in H-1B status beyond
the six year maximum, including evidence of job requirements, alien credentials,
labor condition application approval, previous H-1B status, and, as applicable,
pending labor certification or immigrant petition or approved petition and
unavailability of immigrant visa number, and admissibility or maintenance of
nonimmigrant status.
C. H-1B “Remainder” Option
Section 214(g)(4) of INA provides that “the period of authorized admission as
[an H-1B] nonimmigrant may not exceed 6 years.” INA section 214(g)(7) provides,
in pertinent part, as follows:
Any alien who has already been counted within the 6 years prior to the
approval of a petition described in subsection (c), toward the numerical
limitations of paragraph (1)(A) shall not again be counted toward those
limitations unless the alien would be eligible for a full 6 years of
authorized admission at the time the petition is filed. Where multiple
petitions are approved for 1 alien, that alien shall be counted only once.
In AAO Adopted Decision 06-0001, USCIS has confirmed that the six-year period
of maximum authorized admission accrues only during periods when the alien is
lawfully admitted and physically present in the United States.
8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum
period of admission, a new petition may be approved only if the alien has
remained outside the United States for one year. The statute, regulations, and
current policy guidance, however, do not clearly address situations where an
alien did not exhaust his or her maximum six-year period of admission.
There have been instances where an alien who was previously admitted to the
United States in H-1B status, but did not exhaust his or her entire period of
admission, seeks readmission to the United States in H-1B status for the
“remainder” of his or her initial six-year period of maximum admission, rather
than seeking a new six-year period of admission. Pending the AC21 regulations,
USCIS for now will allow an alien in the situation described above 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.3
Specifically, the “remainder” period of the initial six-year admission period
refers to the full six-year period of admission minus the period of time that
the alien previously spent in the United States in valid H-1B status. For
example, an alien who spent five years in the United States in H-1B status (from
January 1, 1999 - December 31, 2004), and then remained outside the United
States for all of 2005, could seek to be admitted in January 2006 for the
“remainder” of the initial six-year period, i.e. a total of one year. If the
alien was previously counted toward the H-1B numerical limitations in relation
to the time that has accrued against the six-year maximum period of admission,
the alien would not be subject to the H-1B cap. If the alien was not previously
counted against the H-1B numerical limitations (i.e. because cap-exempt), the
alien will be counted against the H-1B cap unless he or she is eligible for
another exemption.
In the alternative, admission as a “new” H-1B alien refers to a petition
filed on behalf of an H-1B alien who seeks to qualify for a new six-year
admission period (without regard to the alien’s eligibility for any “remaining”
admission period) after having been outside the United States for more than one
year. For example, the alien who spent five years in the United States in H-1B
status (from January 1, 1999 - December 31, 2004), and then remained outside the
United States for all of 2005, is eligible to apply for a “new” period of H-1B
status based on his or her absence of at least one year from the United States.
Most petitioners electing this option will seek a three-year H-1B petition
approval, allowing for the possibility of later seeking a three-year H-1B
extension. “New” H-1B aliens are subject to the H-1B numerical limitations
unless they qualify for an exemption. See INA §§ 214(g)(1) and (g)(5).
Note: The burden of proof rests with the alien to show that he or she has
been outside the United States for one year or more and is eligible for a new
six-year period, or that he or she held H-1B status in the past and is eligible
to apply for admission for the H-1B “remainder” time. Petitions should be
submitted with documentary evidence of previous H-1B status such as Form I-94
arrival-departure records, I-797 Approval notices and/or H-1B visa stamps.
III. AFM Amendments
The revised AFM Chapters will be included in the next “I-Link” release.
Accordingly, the AFM is revised as follows:
Section 31.2 in Chapter 31 of the Adjudicator’s Field Manual is revised at
paragraph(d) to read as follows:
31.2 General Requirements for H Petitions
(d) Limits on a Temporary Stay.
(1) Principal Alien.
Specific limits on what is regarded as a temporary period of stay in all H
classifications are included in the regulations to reflect the temporary nature
of these classifications and to achieve consistency in the handling of requests
for extensions of stay. The maximum time limit in an H classification and the
requirement to reside abroad upon expiration of this period cannot be avoided by
leaving the United States before the expiration of the maximum time limit and
reentering within a short period of time under a new petition. In such cases,
the approval period of the new petition shall be consistent with and count
towards the maximum time limit on an alien's temporary stay. A new period of
authorized stay may begin only when the alien has resided outside the United
States for a period required by the classification, or when the alien qualifies
for an exemption from limits on the maximum period of stay as discussed below.
(2) Spouse and Dependents.
Limitations on the duration of time spent in H-1B nonimmigrant status refer
only to the principal alien worker in H-1B status and do not apply independently
to the principal worker’s spouse and children. Normal rules for maintenance of
derivative status still apply such that the spouse or dependent may remain in
the United States only for the purpose of unity with the principal worker.
Time spent as an H-4 dependent does not count against the maximum allowable
period of stay available to principals in H-1B status. Thus, an alien who was
previously an H-4 and subsequently becomes an H-1B principal will be entitled to
a maximum period of stay. Conversely, an H-1B principal who subsequently
converts H-4 status may remain in the derivative status for as long as the
principal alien spouse maintains that principal status.
USCIS may limit, deny or revoke on notice any stay for an H-4 dependent that
is not primarily intended for the purpose of being with the principal worker in
the United States, and a spouse or child may be required to show that his
requested stay is not intended to evade the normal requirements of the
nonimmigrant classification that otherwise would apply when the principal alien
is absent from the United States. USCIS (as well as port inspectors and consular
officers) may adjudicate applications for dependent stays in order to prevent an
H-1B alien from using only occasional work visits to the United States in order
to “park” the family members in the United States for extended periods while the
principal alien is normally absent.
(3) Seasonal, Intermittent or Aggregate Periods of Employment of Six
Months or Less.
The limitation on the total period of stay does not apply to H-1B, H-1C,
H-2B, or H-3 aliens who do not reside continually in the United States and whose
employment in the United States is seasonal or intermittent or for an aggregate
of six months or less per year. Further, the limitations do not apply to aliens
who reside abroad and regularly commute to the United States to engage in
part-time employment. To qualify for this exception, the petitioner and the
alien must provide clear and convincing proof that the alien qualifies for such
an exception. Such proof shall consist of evidence such as arrival and departure
records, copies of tax returns, and records of employment abroad.
(4) Exemptions to Limitations of Stay.
The limitation on the total period of stay does not apply to H-1B aliens
when:
- 365 days or more have passed since the filing of any application for
labor certification, Form ETA 750, that is required or used by the alien to
obtain status as an EB immigrant; or
- 365 days or more have passed since the filing of an EB immigrant
petition; or
- The alien is the beneficiary of an approved EB immigration petition and
is not able to file to adjust status to U.S. permanent legal residence based
on the unavailability of an immigrant visa number.
(5) Applying for Exemptions to Limitations of Stay.
In sections 106 and 104(c) of AC21, Congress provided exemptions from maximum
stay rules for certain H-1B aliens who were being sponsored by employers for
permanent residence and were subject to long delays either for government
processing or for visa numbers. The relevant subsections emphasize exemption
from the maximum admission under INA section 214(g)(4). Congress did not
restrict eligibility for additional periods of admission beyond the maximum six
years to only requests for extension of stay.
A qualified alien need not be in H-1B status in order to benefit from
sections 106 and 104(c) of AC21. The alien may obtain such additional periods of
H-1B admission through a petition to change status from another nonimmigrant
classification, or through H-1B visa issuance at a U.S. consulate (unless visa
exempt) and admission from abroad.
Note: The burden of proof rests with the petitioner and alien to establish
his or her eligibility for any additional periods of stay in H-1B status beyond
the six year maximum, including evidence of job requirements, alien credentials,
labor condition application approval, previous H-1B status, pending labor
certification or immigrant petition, and unavailability of immigrant visa
number, and admissibility or maintenance of nonimmigrant status.
2. Section 31.3(g) in Chapter 31 of the Adjudicator’s Field Manual is amended
to include the following new paragraphs at subsection (g)(14) to read as
follows:
Memorandum for Service Center Directors, et al. Page 8
Subject: Guidance on Determining Periods of Admission for Aliens Previously
in H-4 or L-2 Status,
Aliens Applying for Additional Periods of Admission beyond the H-1B Six Year
Maximum and Aliens Who Have Not Exhausted the Six-Year Maximum But Have Been
Absent from the United States for Over One Year
31.3 H-1B Classification and Documentary Requirements
* * * * *
(g) Adjudicative Issues
***
(14) H-1B “Remainder” Time: USCIS officers shall comply with the following
guidance regarding requests for time in H-1B status on the behalf of an alien
who has not exhausted his or her H-1B maximum period of admission and who has
been absent from the United States for longer than a year.
Section 214(g)(4) of INA provides that “the period of authorized admission as
[an H-1B] nonimmigrant may not exceed 6 years.” INA section 214(g)(7) provides,
in pertinent part, as follows:
Any alien who has already been counted within the 6 years prior to the
approval of a petition described in subsection (c), toward the numerical
limitations of paragraph (1)(A) shall not again be counted toward those
limitations unless the alien would be eligible for a full 6 years of
authorized admission at the time the petition is filed. Where multiple
petitions are approved for 1 alien, that alien shall be counted only once.
In AAO Adopted Decision 06-0001, USCIS has confirmed that the six-year period
of maximum authorized admission accrues only during periods when the alien is
lawfully admitted and physically present in the United States.
8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum
period of admission, a new petition may be approved only if the alien has
remained outside the United States for one year. The statute, regulations, and
current policy guidance, however, do not clearly address situations where an
alien did not exhaust his or her maximum six-year period of admission.
There have been instances where an alien who was previously admitted to the
United States in H-1B status, but did not exhaust his or her entire period of
admission, seeks readmission to the United States in H-1B status for the
“remainder” of his or her initial six-year period of maximum admission, rather
than seeking a new six-year period of admission. Pending the AC21 regulations,
USCIS for now will allow an alien in the situation described above 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.
Specifically, the “remainder” period of the initial six-year admission period
refers to the full six-year period of admission minus the period of time that
the alien previously spent in the United States in valid H-1B status. For
example, an alien who spent five years in the United States in H-1B status (from
January 1, 1999 - December 31, 2004), and then remained outside the United
States for all of 2005, could seek to be admitted in January 2006 for the
“remainder” of the initial six-year period, i.e. a total of one year. If the
alien was previously counted toward the H-1B numerical limitations in relation
to the time that has accrued against the six-year maximum period of admission,
the alien would not be subject to the H-1B cap. If the alien was not previously
counted against the H-1B numerical limitations (i.e. because cap-exempt), the
alien will be counted against the H-1B cap unless he or she is eligible for
another exemption.
In the alternative, admission as a “new” H-1B alien refers to a petition
filed on behalf of an H-1B alien who seeks to qualify for a new six-year
admission period (without regard to the alien’s eligibility for any “remaining”
admission period) after having been outside the United States for more than one
year. For example, the alien who spent five years in the United States in H-1B
status (from January 1, 1999 - December 31, 2004), and then remained outside the
United States for all of 2005, is eligible to apply for a “new” period of H-1B
status based on his or her absence of at least one year from the United States.
Most petitioners electing this option will seek a three-year H-1B petition
approval, allowing for the possibility of later seeking a three-year H-1B
extension. “New” H-1B aliens are subject to the H-1B numerical limitations
unless they qualify for an exemption. See INA §§ 214(g)(1) and (g)(5).
Note: The burden of proof rests with the alien to show that he or she has
been outside the United States for one year or more and is eligible for a new
six-year period, or that he or she held H-1B status in the past and is eligible
to apply for admission for the H-1B “remainder” time. Petitions should be
submitted with documentary evidence of previous H-1B status such as Form I-94
arrival-departure records, I-797 Approval notices and/or H-1B visa stamps.
3. Section 32.6 in Chapter 32 of the Adjudicator’s Field Manual is amended to
include a new paragraph (h) at AFM 32.6 to read as follows:
32.6 Technical Issues
* * * * *
(h) Decoupling Time Spent in L-2 Status from L-1 Maximum Period of Stay.
(1) Time spent in L-2 status does not count against the five or seven-year
maximum period of admission applicable to L-1A and L-1B aliens respectively. An
alien who holds L-2 status (or who previously held L-2 status) and subsequently
seeks to obtain L-1A or L-1B status is eligible for a maximum period of stay of
five or seven years in L-1A or L-1B status respectively.
(2) In the context of any applications for change of status from L-2 to L-1A
or L-1B, adjudicators should consider whether the L-2 alien complied with the
requirements of accompanying or joining the L-1A or L-1B alien, and whether the
alien otherwise maintained valid nonimmigrant status.
(3) USCIS may limit, deny or revoke on notice any stay for an L-2 dependent
that is not primarily intended for the purpose of being with the principal
worker in the United States, and a spouse or child may be required to show that
his requested stay is not intended to evade the normal requirements of the
nonimmigrant classification that otherwise would apply when the principal alien
is absent from the United States. USCIS (as well as port inspectors and consular
officers) may adjudicate applications for dependent stays in order to prevent an
L-1 alien from using only occasional work visits to the United States in order
to “park” the family members in the United States for extended periods while the
principal alien is normally absent.
4. The AFM Transmittal Memoranda button is revised by adding a new entry, in
numerical order, to read: | 
