I. The Distinction of Time Spent in H-4 and L-2 Status from Time Spent in H-1B or L-1 Status for Purposes of Reaching the Six Year Limit on Eligibility for H-1B or L-1 Status

The first area of guidance provided in this memorandum is to provide an answer as to whether time spent in H-4 or L-2 dependent status should count toward the accrual of time In H or L status toward the time available as a working H or L status holder (maximum six years for an H-1B status holder, maximum five years for an L-1B status holder, or maximum seven years for an L-1A status holder.)

The USCIS policy announced in this memorandum is that time spent in dependent H-4 or L-2 dependent status will NOT count against the maximum periods of admission for which the individual is eligible in the H-1B or L-1 classifications. Persons seeking to take advantage of this provision are reminded that a beneficiary's first petition in the H-1B classification is still subject to the H-1B numerical limitation if not expressly exempt.

II. Clarification that an H-1B Beneficiary Need Not Hold Current H-1B Status in the U.S. to Qualify for an Extension of H-1B Status beyond the 7th Year based on the American Competitiveness in the Twenty-First Century Act of 2000 (AC 21)

The second area of guidance provided in the memorandum is with respect to the status of a prospective H-1B beneficiary who qualifies for a seventh year extension of status based on a lengthy permanent residency process under the American Competitiveness in the Twenty-First Century Act of 2000 (AC 21.) This relevant sections of AC 21 make possible "extensions" of H-1B status under one of two scenarios involving lengthy permanent residency processes and by their express language would therefore imply a requirement that the party seeking the extension was in H-1B status at the time of the 7th year extension filing.

In contrast, the current memorandum clarifies that the USCIS will NOT require that the individual seeking a 7th year extension of H-1B status under either of these provisions is in H-1B status at the time the extension is sought. Rather, the memo announces that individuals eligible for the 7th year extension should be eligible for the extension regardless of whether the person holds H-1B status in the U.S. at the time the 7th year extension is sought.

III. Opening the Door to Former H-1B Status holders Presently Abroad but Still Within what would be their 6 Year Period of H-1B Eligibility to Opt to Re-Enter the U.S. in H-1B Status Exempt from the H-1B Numerical Limitation, even if the Stay Abroad is in Excess of One Year

Lastly, the third issue addressed in this memorandum involves the question of whether an H-1B petition will count as a new petition toward the H-1B numerical limitation when the H-1B beneficiary has spent some time in H-1B status in the U.S. but has not exhausted the 6 year limit, and has thereafter spent more than one year aside the U.S. Implied by the language of the I-129W form to seek exemption from the H-1B numerical limitation, an individual who had been abroad for a full year since holding H-1B status in the U.S. would appear subject to the H-1B cap once again due to the fact that the one year abroad establishes eligibility for a full new six year period of H-1B admission.

However, clarified in this memorandum is that "for now" and until further notice and/or the publication of AC21 regulations, the USCIS will not impose this requirement, but will instead offer a choice. "For now", the USCIS will allow an H-1B beneficiary in the above situation to choose to either be admitted for his/her remaining time in H-1B status considering time previously spent in the U.S. in H-1B status and to avoid being considered subject to the H-1B cap OR to choose to be counted again toward the H-1B cap and to be eligible for a renewed six years of H-1B status following admission.

All three of these provisions are very favorable to foreign workers and may allow many to consider new alternatives in support of extensions of status in the U.S. and/or new bases of readmission exempt from the H-1B cap. In considering any of these options, it is important to bear in mind that this is policy guidance and could be subject to change in the future pending further announcements by the USCIS and/or regulations.