December 22, 2006
Time Spent in H-4 Status No Longer Counts Against the Allowed Time in H-1B Status
Until now, USCIS counted the time one spent in H-4 status when calculating the amount of time one may be in H-1B status. For example, for someone that spent five years in H-4 status, s/he would only be able to hold H-1B status for one year before reaching the six-year maximum period of stay one is allowed to be in H-1B status. The same policy applied to L-2/L-1 status holders.
This month, USCIS completely changed this policy, and now time spent in H-4 status no longer counts against the six-year H-1B limit, and time spent in L-2 status no longer counts toward the five-year L-1B limit, nor the seven-year L-1A limit.
Therefore, one who has been in the US for six-years as an H-4 dependent, may qualify for a change of status to H-1B and stay another six-years.
Periods of Stay in H-1B Status Beyond the Six-Year Maximum
Until now, H-1B workers who are eligible for the 7th year extension allowed under the provisions of AC21 may be granted the extension only if they were currently in the US and in H-1B status.
USCIS’ new policy now allows those eligible for the 7th year extension to be granted an extension regardless of whether they are currently in the US or abroad, and regardless of whether they currently hold H-1B status.
Under the new policy, someone who had to leave the US because s/he did not qualify for the 7th year extension by the time his/her six-year limit was reached, can subsequently file a 7th year extension even if s/he is no longer in the US (e.g., back in his/her home country). Also, someone who had to change from H-1B status to another nonimmigrant status (e.g., H-4, F-1, etc.) after exhausting his/her six-years because s/he did not qualify for the 7th year extension by the time his/her six-year limit was reached, and can now qualify for the 7th year extension even if s/he is no longer in H-1B status.
H-1B “Remainder” Option
USCIS also clarified that someone who has spent, for example, five years in H-1B status, then left the US for one year, may now apply for re-entry in H-1B status and use the one year remaining on the original six-year limit, without being subject to the annual H-1B cap. Such aliens also have the option of applying for a “fresh” six-years in H-1B status (having spent one year abroad) but such aliens would be subject to the H-1B cap.