Interoffice Memorandum Example
Memorandum for Service Center Directors, et al. Page 2
Subject: Guidance on D e te rm i ni ng Per i ods of Adm i ssi on f or Al i ens Pre vio usl y in H- 4 or L-2 St at us,
Aliens Applying for Additional Periods of Admission beyond the H-1B Six Year Maximu m and
Aliens Who Have Not Exhausted the Six-Year Maximum But Have Been Absent from the United
States for Over One 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.
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).
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
See, e.g., INA §§ 101(a)(15)(h(i)(b), 214(g)(2) and (4); 8 CFR §§ 214.2(h)(8)( i)(A), (h)(9)(iv), and (h) (13). Also
note the David Martin General Counsel Opinion of July 2, 1997, on “Eligibility of an alien to change nonimmigrant
classification to H-4,” only addresses determining time limits aliens who remain in H-4 status and are requesting
additional time in H-4 st at us. It does not address scenarios where an alien, who has spent time in H-4 status, is now
requesting status as an H-1B or changing status from H-4 to H-1B.
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