Interoffice Memorandum Example
Memorandum for Service Center Directors, et al. Page 5
Subject: Guidance on D e te rm i ni ng Per i ods of Adm i ssi on f or Al i ens Previousl 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
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 e ligible 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:
1. 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
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