Interoffice Memorandum Example
Memorandum for Service Center Directors, et al. Page 6
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
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.
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