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New CIS Memo on H-1B Timing Issues
CIS recently released a memo that addresses several H-1B timing issues. The memo specifically clarifies three points:
* Clarifies that time spent as an H-4 and L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B or L-1 status.
* Clarifies that individuals do not need to be in H-1B status or in the U.S. in order to request additional H-1B time beyond six years under AC21.
* Clarifies that an individual who was in the U.S. in H-1B status for less than six years and then subsequently leaves the U.S. for more than one year, may elect to either be re-admitted for the remainder of the initial six-year admission period w/o being counted against the cap OR seek to be admitted as a new H-1B subject to the cap.
Decoupling of H-4 and L-2 Time from H-1B and L-1 Time
The first issue addressed in this CIS memo is how to count H-4 and L-2 time against maximum periods allowed under H-1B and L-2 time. For example, would an individual present in the U.S. in L-2 status for the past six years be eligible for any H-1B time? The answer is yes.
CIS now clarifies that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B individuals. For example, an individual who was previously in H-4 depdendent status and who subsequently becomes an H-1B principal is entitled to the maxium period of stay applicable under H-1B time.
Periods of Stay on H-1B Status Beyond Six Years Pursuant to AC21
The second issue addressed in this CIS memo deals with requesting extensions beyond six years under AC21 even if the individual is no longer in H-1B status or no longer in the U.S. For example, if someone previously maxed out H-1B time and changed to TN status, and s/he is now eligible for H-1B time beyond six years under AC21, can s/he request more H-1B time even though s/he is now in TN status? The answer is yes.
The memo reads "Though both provisions of AC21 use the term "extension of stay," eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currnetly in the United States or abroad and regardless of whether they currently hold H-1B status."
H-1B Remainder Option
The third issue in this CIS memo addressed the situation of an individual who did not max out his or her H-1B time but subsequently left the U.S. for more than one year. For example, if an indivdual was previously in the U.S. in H-1B status for less than six years, and then subsequently leaves the U.S. for more than one year, may s/he be re-admittted for anytime remaining from their previous H-1B admission period or does s/he now need to admitted as a new H-1B with a new six years available, but subject to the cap? The answer is actually either and up to the individual.
The memo reads:
"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 AC21 regulations, USCIS for now will allow an alien in the situation described above to elect to either (1) to be re-admitted for the "remainder" of the initial six-year admission period without being subject to the H-1B cap if previously counted or (2) seek to be readmitted as a "new" H-1B alien subject to the H-1B cap."
Under this guidance, if the H-1B cap is an issue, the option will be for the individual to come in now and take whatever H-1B time they have left, or wait and file under ther cap and have six-years available again.
Regards,
Andrew
* Clarifies that time spent as an H-4 and L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B or L-1 status.
* Clarifies that individuals do not need to be in H-1B status or in the U.S. in order to request additional H-1B time beyond six years under AC21.
* Clarifies that an individual who was in the U.S. in H-1B status for less than six years and then subsequently leaves the U.S. for more than one year, may elect to either be re-admitted for the remainder of the initial six-year admission period w/o being counted against the cap OR seek to be admitted as a new H-1B subject to the cap.
Decoupling of H-4 and L-2 Time from H-1B and L-1 Time
The first issue addressed in this CIS memo is how to count H-4 and L-2 time against maximum periods allowed under H-1B and L-2 time. For example, would an individual present in the U.S. in L-2 status for the past six years be eligible for any H-1B time? The answer is yes.
CIS now clarifies that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B individuals. For example, an individual who was previously in H-4 depdendent status and who subsequently becomes an H-1B principal is entitled to the maxium period of stay applicable under H-1B time.
Periods of Stay on H-1B Status Beyond Six Years Pursuant to AC21
The second issue addressed in this CIS memo deals with requesting extensions beyond six years under AC21 even if the individual is no longer in H-1B status or no longer in the U.S. For example, if someone previously maxed out H-1B time and changed to TN status, and s/he is now eligible for H-1B time beyond six years under AC21, can s/he request more H-1B time even though s/he is now in TN status? The answer is yes.
The memo reads "Though both provisions of AC21 use the term "extension of stay," eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currnetly in the United States or abroad and regardless of whether they currently hold H-1B status."
H-1B Remainder Option
The third issue in this CIS memo addressed the situation of an individual who did not max out his or her H-1B time but subsequently left the U.S. for more than one year. For example, if an indivdual was previously in the U.S. in H-1B status for less than six years, and then subsequently leaves the U.S. for more than one year, may s/he be re-admittted for anytime remaining from their previous H-1B admission period or does s/he now need to admitted as a new H-1B with a new six years available, but subject to the cap? The answer is actually either and up to the individual.
The memo reads:
"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 AC21 regulations, USCIS for now will allow an alien in the situation described above to elect to either (1) to be re-admitted for the "remainder" of the initial six-year admission period without being subject to the H-1B cap if previously counted or (2) seek to be readmitted as a "new" H-1B alien subject to the H-1B cap."
Under this guidance, if the H-1B cap is an issue, the option will be for the individual to come in now and take whatever H-1B time they have left, or wait and file under ther cap and have six-years available again.
Regards,
Andrew
