Q and A on the New USCIS H/L Status Memo

Murali Bashyam

Q: I held H1B status for two years from 2000-2002. I left the U.S. in 2002 and have been outside the U.S. since then. I have an employer who is willing to employ and sponsor me for H1B status. Am I subject to the H1B cap?

A: This is a great question and one that is frequently asked by clients and others who call our office. The law states that a person who had previously held H1B status but who has been outside of the U.S. for one year or more is eligible for a brand-new six year period in H1B status. Therefore, a person in this situation has traditionally been subject to the H1B cap. However, the USCIS recently issued a memo clarifying this issue. According to the USCIS, 1) if a person applies for and wants a full six years in the U.S. in H1B status, they will be subject to the cap; 2) if a person does not want a full six years in H1B status in the U.S., they will not be subject to the cap and can return to the U.S. for four years in H1B status. This is important to keep in mind since the Fiscal Year 2008 H1B cap is likely to be ‘hit’ anywhere from a day to a few weeks starting April 1, 2007. If you have previously held H1B status for less than six years and have subsequently been outside the U.S. for over a year, you can still get H1B status even if the Fiscal Year 2008 cap gets hit in the coming months.

Q: My husband has held H1B status for four years. During that time, I held H4 status. Can I switch my status to H1B? If so, will I get a full six-year period in H1B status?

A: This is again a very good and relevant question. The law states that time spent in H status counts towards the six years allowed under in H1B status. However, the USCIS recently issued a memo that clarified and seemed to have changed this position. According to the recent USCIS memo, time spent in H4 status does not count towards the six-year limit allowed for H1B status. Therefore, if you been in H4 status for four years and decide to change your status to H1B, you can hold that status for up to six years.

How can this help you?

Let’s assume Person X and Person Y are married. Person X has held H1B status for five and a half years. Person Y has held H4 status (as a dependent of an H1B) for five and a half years as well.

A person’s H1B status can be extended past the six-year limit under one of the following situations: 1) a labor certification has been pending for at least 365 days prior to hitting his/her sixth year in H status or 2) he/she received an approved I-140 petition prior to hitting the sixth year in H status and he/she cannot file an I-485 adjustment application due to per country visa backlogs.

If an extension based on the above is not possible for Person X, and if Person Y has a legitimate job offer in a professional position, Person Y can file for a change of status to H1B and (if approved) can hold that status for six years. Person X can change his/her status to H4 as the spouse of Person Y as long as person Y holds valid H1B status. This will allow Person X and Person Y to remain in the U.S. for a new six year period with Person X now in H4 status and Person Y in H1B status. It is important to remember that a person in H4 status cannot work in the United States.

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