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Immigration News - December 27, 2006

December 27, 2006

By Immigration Practice Group

USCIS Issues Memorandum Clarifying H-1B and L-1 Status Issues

The USCIS has issued a new memorandum providing a helpful interpretation of several issues relating to H-1B and L-1 status.  The memorandum clarifies a number of issues that had been subject to inconsistent interpretation in the past, including the following:

· Time Spent in H-4 or L-2 Status Does Not Count Against the Normal Maximum Stay in H-1B or L-1 Status The new memorandum clarifies that time spent in H-4 or L-2 status does not count against available time in H-1B or L-1 status.  This helpful interpretation has a particularly important practical impact for people who initially come to the U.S. in H-4 or L-2 dependent status with their spouse, and then are offered employment in the U.S. and seek to obtain H-1B or L-1 status.  The memorandum clarifies that these individuals are allowed the full normal stay in H-1B or L-1 status, without the time already spent in H-4 or L-2 status needing to be deducted from the normal maximum stay.

· Additional Time in H-1B Status Can Be Accorded Outside of the Extension Context Pursuant to AC21, there are circumstances where an individual's stay in H-1B status may be extended beyond the normal 6 year maximum stay depending on the timing of the filing of the labor certification application on that individual's behalf, or where an immigrant petition is approved and the individual is unable to file an adjustment of status application due to immigrant visa retrogression.  However, it has been unclear whether this additional time could be granted only as an extension of existing H-1B status.  The new Memorandum clarifies that eligibility for the exemption to the 6-year maximum period of stay is not restricted solely to requests for extensions of stay while in the U.S.  Thus, individuals eligible for H-1B status beyond the 6-year maximum need not currently be in the U.S. or currently hold H-1B status.

· Individuals Who Have Been Counted Against the H-1B Cap in the Past 6 Years are Not Cap Subject Even if they Leave the U.S. for More than 1 Year

An individual who has been counted against the H-1B cap in the past 6 years is generally not subject to the H-1B cap.  However, when that person leaves the U.S. and is outside the U.S. for more than 1 year, he/she generally becomes eligible for a fresh 6 year stay in H-1B status, but also appeared to again become subject to the H-1B cap.  The new Memorandum has clarified that such an individual can elect to be readmitted to the U.S. not subject to the H-1B cap to work in the U.S. for the unused portion of his/her initial 6 year stay in H-1B status (assuming they were counted against the cap previously).  This is helpful guidance for employers recruiting high-skilled workers on a global basis, because some of these workers may have previously worked in the U.S. in H-1B status before leaving to pursue other opportunities abroad.  With the guidance from the new Memorandum, it should be possible to obtain H-1B status for such workers even if they have been abroad for more than a year without needing to wait for the H-1B cap to open again in October 2007.

The new Memorandum brings sound, common-sense reasoning to these issues in a way that is very helpful to employers.  We commend the USCIS for taking a practical, reasonable approach on these issues.

Immigration News is published solely for the interests of friends and clients of Paul, Hastings, Janofsky & Walker LLP and should in no way be relied upon or construed as legal advice. For specific information on recent developments or particular factual situations, the opinion of legal counsel should be sought. Paul Hastings is a limited liability partnership. Copyright © 2006 Paul, Hastings, Janofsky & Walker LLP.