December 19, 2006

A Memo Issued on December 6, 2006 Changes the Counting of H and L Time, and Adds a New Exception to Being Counted Against the H-1B Cap

Decoupling of H-4 and L-2 Time

Any time spent in the US under H-4 or L-2 status WILL NO LONGER BE SUBTRACTED from the total time period that one may stay in the US under L-1 or H-1B status. ONLY TIME SPENT IN H-1B OR L-1 STATUS WILL BE SUBTRACTED FROM the relevant time periods. Therefore, many people previously subject to the cap because of the inclusion of H-4 or L-2 time, will no longer be counted against the same, and may file their cases.

Exception to Being Counted Against the Cap

Previously, the general rule stated that any person who was previously in the US under H-1B status for less than 6 years, and who left the US for more than one continuous year, would be eligible for another 6 year term and be subject to the cap in any new H-1B filing. This often precluded people from immediately filing if the H-1B cap had been completely used for that fiscal year. However, the new rule now allows for an exception from the cap. If numbers are left under the cap, you may apply for time under a new 6 year term. However, if the cap is completely used, USCIS will allow for an immediate filing ONLY FOR the amount of unused under any 6 year term. Therefore, this filing WOULD NOT be subject to the cap.

Please contact us if you have any questions, and review cases that may have been capped out under the above scenarios. We may immediately file those cases for you.

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