On December 5, 2006, a memo about H-1B durations and relevant issues had been published by USCIS. Following is the specific articles from the USCIS:

A. Decoupling H-4 Time from H-1B Time

USCIS reviewed the current INA provisions governing the H classifications as well as its governing regulations and policy guidance. Neither the statute nor regulations addresses whether time spent in H-4 status counts against the six-year maximum period of admission available to an alien seeking H-1B status. Further, USCIS has not issued any recent policy guidance that clarifies the issue.

USCIS, therefore, is now clarifying that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.

USCIS finds this approach most consistent with the statutory framework, which allows eligible aliens to obtain a full six-year admission period as an H-1B alien. Further, from a policy perspective, this interpretation promotes family unity by affording each qualified spouse the opportunity to spend six-years in H-1B status while allowing the other spouse to remain as an H-4 dependent and without undermining the Congressional intent to limit a principal alien’s ability to work in a specialty occupation for six-year maximum period. For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. Note that, upon the switch, the new “principal alien” would be subject to the H-1B cap if not independently exempt. USCIS will consider, in the context of any applications for change of status from H-4 to H-1B, whether the H-4 alien complied with the requirements of accompanying or joining the H-1B alien, and whether the alien otherwise maintained valid nonimmigrant status.

B. Periods of Stay in H-1B Status Beyond the Six Year Maximum

In sections 106 and 104(c) of AC21, Congress provided exemptions to the six-year maximum period of stay rules for certain H-1B aliens who were being sponsored by employers for permanent residence and were subject to lengthy processing delays. 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 currently in the United States or abroad and regardless of whether they currently hold H-1B status. Further, in examining eligibility for the 7th year extension, USCIS will focus on whether the alien is eligible for an additional period of admission in H-1B status, rather than whether the alien is currently in H-1B status that is about to expire and seeking an extension of that status in the United States pursuant to 8 CFR 214.1(c).

C. H-1B “Remainder” Option

Section 214(g)(4) of INA provides that “the period of authorized admission as [an H-1B] nonimmigrant may not exceed 6 years.” INA section 214(g)(7) provides, in pertinent part, as follows:

Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.

In AAO Adopted Decision 06-0001, USCIS has confirmed that the six-year period of maximum authorized admission accrues only during periods when the alien is lawfully admitted and physically present in the United States.

8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum period of admission, a new petition may be approved only if the alien has remained outside the United States for one year. The statute, regulations, and current policy guidance, however, do not clearly address situations where an alien did not exhaust his or her maximum six-year period of admission.

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 the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect 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 admitted as a “new” H-1B alien subject to the H-1B cap.

Specifically, the “remainder” period of the initial six-year admission period refers to the full six-year period of admission minus the period of time that the alien previously spent in the United States in valid H-1B status. For example, an 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, 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).