Interoffice Memorandum Example
Memorandum for Service Center Directors, et al. Page 4
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
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), to ward 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 period s 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 “rem ainder” 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
3
This new “remainder” policy does not affect an H-1B alien who was previously admitted to th e United States, but
who has not been absent from the United States for more than one year. Such an alien would not be eligible for a
new six- year period of admission and therefore may only seek readmission based on time remaining against his or
her initial six-year period of admission.
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