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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