Website Q & A - January 18, 2007

H-4 Holder Who Changed to H-1B for Almost 3 Years is Eligible for H-1B Extension Even Though Total Time in U.S. as H-1B/H-4 Holder will Exceed Six Years

Web reader asks:

I entered the U.S. in 1997 with a student visa and later changed to H-4 as a dependent of my husband in 2001. His H-1B first started in April 2001. I then found a job in 2004 and received an H-1B visa myself which will expire in April 2007. Neither me nor my husband has ever applied for labor certification or employment visa petition for permanent immigration. My husband and I will have been in H-1B/H-4 statuses for six years in April 2007, but since I've only been in H-1B status for less than three years, can I get an extension? If I can get a H-1B extension, can my husband change his status to H-4 even though he has already been here six years under H-1B status so that he can stay with me?

Dear reader:

Previously U.S.C.I.S. restricted the period of time that individuals could remain in the U.S. under either H-1B or H-4 dependent status to six years. Any time spent in H-1B status counted against H-4 time and vice versa. The American Competitiveness in the 21st Century Act (AC-21) broadened the ability to stay by stating that individuals who had a pending labor certification or immigrant visa petition based on employment for one year would be allowed to remain in one year increments to complete their processing. A second broadening by the same act was that individuals who had approved I-140 petitions but could not file I-485 applications to adjust status to permanent residence because the priority date was not yet current could obtain a three-year extension of H-1B stay.

On December 5, 2006, U.S.C.I.S. issued an interoffice memorandum, "Guidance on determining periods of admission for aliens previously in H-4 or L-2 status; aliens applying for additional periods of admission beyond the H-1B six year maximum; and aliens who have not exhausted the six year maximum bar or have been absent from the United States for over one year" which further broadened the time by rescinding the former U.S.C.I.S. position that any time spent in H-1B or H-4 statuses counted against extensions past six years within the other category. Therefore, individuals will now be allowed to spend (if they so desire) six years in an H-1B status and another six years in H-4 status or vice versa even if they do not qualify for any of the exceptions under AC-21. In your case, you would be allowed three + years after April 2007 as you will have spent less than three years in H-1B status by that date. As your husband will have exhausted his H-1B time of six years by April 2007, he is no longer eligible for continued H-1B stay but can be allowed to change status to H-4 during the remainder of your time in H-1B status.


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The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.