On December 5, 2006, U.S. Citizenship and Immigration Services (CIS) published a memorandum from Michael Aytes, Associate Director, Domestic Operations (hereinafter "Aytes Memorandum").  The Aytes Memorandum advises USCIS adjudicators that any time spent in H-4 status does not count against the six year maximum period of admission applicable to H-1B aliens.  Similarly, time spent as an L-2 dependent does not count against the maximum period of admission applicable to L-1 aliens.  The Aytes Memorandum also provides guidance to CIS adjudicators on how to calculate H-1B admission periods, and provides specific guidance relating to H-1B extensions of stay under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). 

That time spent as an H-4 or L-2 dependent will not count against the maximum allowable period of stay in H-1B and L-1 status constitutes a significant policy change by the CIS.  The Service has long taken the position that all periods of stay in the U.S. in H or L status must be counted against the six year limit of stay for H-1B status, the five year limit for L-1B status, or the seven year limit for L-1A status.  The Aytes Memorandum states:  "an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification."  CIS determined that this policy was most consistent with the statutory framework, and "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 dependent."   Adjudicators are now instructed that the primary purpose of dependent status is to accompany the principal worker, and "a spouse or child may be required to show that the requested H-4 stay is not intended to evade the normal requirements for nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States.   This policy is meant to prevent an H-1B or L-1 alien from using only occasional work visits to the United States to 'park' dependent family members in the United states for extended periods of time while the principal is normally absent."

The Aytes Memorandum also clarifies that H-1B workers who qualify for AC-21 extensions beyond the six year maximum need not be in H-1B status when requesting the additional period of stay beyond the six year maximum.  Aliens who are eligible for an AC-21 extension may be granted such extensions regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status.  In determining eligibility for a seventh year of H-1B status, CIS will focus on whether the alien is eligible for an additional period of admission in H-1B status, rather than whether the alien is currently in H-1B status that is about to expire and is seeking an extension of that status in the United States.

Finally, the Aytes Memorandum confirms CIS policy that only time spent physically in the United States counts toward the H-1B six-year maximum period of stay, and clarifying CIS practice for H-1B "remainder" applications.  The H-1B remainder is the difference between the six year maximum period of admission and the time the H-1B worker was in the United States in valid H-1B status.  If an alien who was previously admitted to the United States in H-1B status was outside the United States for at least one year, but did not use the full six years of H-1B eligibility, the alien may either request admission in H-1B status for the remainder of his/her original six year eligibility, or may request a new six year period.  However, if a new six year period is requested, the alien will be subject to the annual H-1B numerical cap.  A petition for the remainder of the original six year H-1B period of admission will not be subject to the H-1B cap.  In order to request the remainder H-1B period, the alien must document that s/he has been outside the United States, such as with visa stamps, I-94 copies, and I-797 approval notices.

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