USCIS has recently clarified that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, 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.

USCIS finds this approach most consistent with the statutory framework, which allows eligible aliens to obtain a full six-year admission period as an H-1B alien. Further, from a policy perspective, this interpretation 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 and without undermining the Congressional intent to limit a principal alien’s ability to work in a specialty occupation for six-year maximum period.

For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. Note that, upon the switch, the new “principal alien” would be subject to the H-1B cap if not independently exempt. USCIS will consider, in the context of any applications for change of status from H-4 to H-1B, whether the H-4 alien complied with the requirements of accompanying or joining the H-1B alien, and whether the alien otherwise maintained valid nonimmigrant status.

Also, in light of the similar statutory provision set forth in INA 214(d) applicable to L-1 and L-2 aliens, this memorandum provides that time an alien has spent time in L-2 dependent status will not count against the time available to the alien in L-1A or L-1B status.