Interoffice Memorandum Example
Memorandum for Service Center Directors, et al. Page 3
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
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 co mplied with the requirements of acco mpanying or joining the H-1B
alien, and whether the alien otherwise maintained valid nonimmigrant status.
2
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 tim e while the principal is norm ally 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 7
th
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 7
th
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 m aximum, including evidence
of job requirements, alien credentials, labor condition application approval, previous H-1B
2
Maintenance of H-4 status continues to be tied to the principal’s maintenance of H-1B status. Thus, H-4
dependents may only maintain such status as long as the principal holds H-1B status.
Page 3/11
Free Download
Interoffice Memorandum Example PDF
Favor this template? Just fancy it by voting!
(0 Votes)
0.0
Related Forms
