The USCIS has just released a Memorandum that confirms and clarifies several unresolved issues in a favorable manner for foreign nationals. Specifically, this Memo clarified the following:

• Time spent as an H-4 and/or L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B and L-1 status. For example, a spouse in H-4 status for five years who then accepts employment and requests a change of status to H-1B will have six years of eligibility remaining rather than one year.

• Foreign nationals who qualify under the AC21 provisions do not need to be in H-1B status when requesting an additional period of stay beyond the six year maximum. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status.

• An H-1 worker who has been out of the US for more than one year may elect to be admitted for the "remainder" of the six year period.  This will allow individuals previously counted against the H-1B cap who have been outside the United States for one year or longer to be exempt from the quota when a new H-1B petition is filed on their behalf.  Under the old rule the H-1 worker would have had to request a new six-year period of admission, which would make the worker subject to the H-1 cap.  This new interpretation still allows the H-1 worker to request a new six-year period of admission so it provides flexibility.

The Memorandum is entitled "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 But Who Have Been Absent from the United States for Over One Year."