Extending H or L Status Beyond Maximum

The H and L visas are non-immigrant visa categories that authorize the holders to stay and work temporarily in the U.S.

The H-1B visa allows professionals or specialty occupation workers to enter the U.S. and work in their fields for a maximum period of six years.

The L-1 visa allows international companies to bring their foreign employees to the U.S. to work for a limited period of time not exceeding five years for specialized knowledge workers, and a maximum of seven years for intra-corporate managers and executives.

The H-1B workers may bring with them their spouse and children under twenty-one years of age as dependents under the H-4 visa. H-4 holders may enter and remain in the U.S. for the duration of the principal H-1B holder’s authorized stay.

L-2 visa may be issued to the L-1 holder’s spouse and dependent children under twenty-one years of age. The duration of their stay is the same as that of the L-1 holder.

Once the maximum period of stay is reached under these categories, the principal alien-beneficiaries under the H-1B and L-1 visas must either change to a different visa category (other than H or L, respectively) or leave the U.S. for at least one year. The status of their dependents likewise expire.

Under immigration regulations and USCIS guidelines, if the alien changes to a different visa category or has been out of the U.S. for at least one year, he/she can later apply again for the H-1B or L-1. These new visas will allow the aliens and their dependents another six-year period under H-1B, or five or seven-year period under the L-1 categories.

If the dependent spouse under H-4 should decide to apply to become the principal recipient of the H-1B, then her/his time spent in the U.S. as a dependent H-4 will not be counted against the six-year maximum stay under H-1B. She/he will be entitled to a full six-year period applicable to the H-1B classification. Her/his spouse who was previously the H-1B status holder can then opt to change to H-4 non-working dependent classification.

The same guidelines may be applied with respect to a derivative L-2 spouse.

However, the United States Citizenship and Immigration Services (USCIS) cautioned against using the derivative H-4 or L-2 visas for dependents whose principal alien spouses are in the U.S. only infrequently and are working or stationed mostly abroad.

There are exemptions to the six-year maximum stay under the H-1B. For those H-1B employees who were being sponsored by their employers for permanent residence (employment-based green card) and were subject to lengthy processing delays, they are eligible to request for extensions of stay beyond the six-year period. This is regardless of whether they are currently in the U.S. or abroad; or whether they are currently holding the H-1B status.

Under these circumstances, the USCIS will look at several factors to grant the extension of stay. These will include: evidence of job requirements, credentials of the alien, labor condition approval, previous H-1 status, pending immigrant petition or labor certification, approved I-140 petition, unavailability of immigrant visa number and admissibility or maintenance of nonimmigrant status.

Moreover, for those have been outside the U.S. for one full year prior to exhausting the six-year maximum period under H-1B, the USCIS will allow the alien to opt to be re-admitted for the remainder of the initial six-year admission period without being subjected to the H-1B cap or to seek to be admitted as a new H-1B alien subject to the H-1B cap. The cap refers to the numerical quota limitations that Congress gives for H-1B beneficiaries.