Interoffice Memorandum Example
Memorandum for Service Center Directors, et al. Page 7
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
Such proof shall consist of evidence such as arrival and departure records,
copies of tax returns, and records of employment abroad.
(4) Exemptions to Limitations of Stay.
The limitation on the total period of stay does not apply to H-1B aliens when:
(A) 365 days or more have passed since the filing of any application for labor
certification, Form ETA 750, that is required or used by the alien to obtain
status as an EB immigrant; or
(B) 365 days or more have passed since the filing of an EB immigrant petition;
or
(C) The alien is the beneficiary of an approved EB immigration petition and is
not able to file to adjust status to U.S. permanent legal residenc e based on
the unavailability of an immigrant visa number.
(5) Apply ing for Exemptions to Limitations of Stay.
In sections 106 and 104(c) of AC21, Congress provided exemptions from
maximum stay rules for certain H-1B aliens who were being sponsored by
employers for permanent residence and were subject to long delays either for
government processing or for visa numbers. The relevant subsections
emphasize exemption from the maximum admission under INA section 214(g)(4).
Congress did not restrict eligibility for additional periods of admission beyond the
maximum six years to only requests for extension of stay.
A qualified alien need not be in H-1B status in order to benefit from sections 106
and 104(c) of AC21. The alien may obtain such additional periods of H-1B
admission through a petition to change status from another nonimmigrant
classification, or through H-1B visa issuance at a U.S. consulate (unless visa
exempt) and admission from abroad.
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
maximum, including evidence of job requirements, alien credentials, labor
condition application approval, previous H-1B status, pending labor certification
or immigrant petition, and unavailability of immigrant visa number, and
admissibilit y or maintenance of nonimmigrant status.
2. Section 31.3(g) in Chapter 31 of the Adjudicator’s F ield Manual is amended to include the
following new paragraphs at subsection (g)(14) to read as follows:
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