Extended Stay for H1-B and L-1 Workers With Families
January 12, 2007
H-1B workers are generally allowed to stay in the US for a maximum period of six (6) years. L workers (intracompany workers) are allowed seven (7) years, if they are executives or managers, and five (5) years if they are persons of specialized knowledge.
It has not been clear, however, if the period of stay of their dependents under H-4 or L-2 visas were counted against these time limitations.
Under a recent memo issued by the US Citizenship and Immigration Services the maximum period of stay of an H-1B or L-1 family in cases where the H-4 or L-2 dependent switches with his/ her spouse to become the principal visa holder is practically extended.
The Memo provides that the time spent by dependents as H-4 and L-2 visa holders will not be counted toward their maximum authorized period of stay should these dependents change their status to H-1B or L-1.
The USCIS noted that there were no regulations in the past that specified the total maximum authorized stay of an H-4 alien, for instance, who later sought to convert to H-1B. The Memo now clarifies that the H-4 spouse who qualifies for H-1B is entitled to the full 6-year maximum stay.
This rule, the Memo explains, is not only consistent with the law, but also 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.
Assuming all statutory requirements for a change of status are satisfied, the net effect of having the H-4 spouse convert to H-1B after the principal H-1B visa holder has reached the six-year maximum stay, is that the family can stay in the US for at least 12 years.
The same requirements and limitations still apply when the dependent spouse switches with the principal visa holder, such as being subject to the annual H-1B numerical limit, if not independently exempt, according to the Memo.
In the same manner, the time spent by an L-2 holder will not be counted against him/her if s/he converts to L-1. The family of the L holder can also practically stay longer than the maximum total stay of the first principal visa holder.
It must be noted that the policy consideration behind the rule is to keep the principal visa holder’s family together. Thus, the Memo states that the USCIS has the authority to limit, deny or revoke on notice the stay of an H-4 or L-2 visa holder in cases where the dependents are parked in the US, even as the principal visa holder spends extended periods of time abroad.
On the other hand, the Memo also notes that if the H-1B or L-1 holder is sent from time to time abroad temporarily, s/he may leave the family in the US for purposes of continuity of schooling or similar arrangements.
The principal visa holder and his/ her spouse must evaluate their situation to determine if the above regulation would apply to them. They must seek legal advice to determine if the H-4 or L-2 dependent spouse can qualify for either H-1B or L-1, in order to avail of the maximum period of stay in the US as part of a longer-term strategy of possibly seeking adjustment of status to permanent residency in the US.