H1B/H-4 Decoupling is Effective Immediately

We receive many questions that come into the Murthy Law Firm from visitors to our website and readers of our bulletin, as well as our clients and others who know us by reputation. The issuance of a December 5, 2006 USCIS memo affecting persons in H and L statuses has generated a simple but significant question: “Is the Memo effective immediately?” The answer to this is yes. [The USCIS Interoffice Memo is available online.]

Memos generally are effective as of the dates they are issued. Questions may arise from the fact that laws and regulations are sometimes not effective immediately when passed. Our articles are written in an attempt to be very clear when a law or regulation is not effective at the time it is made public.

Decoupling Provisions Can Be Used in Extension Requests

Most of those inquiring about timing are concerned with the decoupling aspect of the Memo. This portion of the Memo states that the time spent in H1B (or L-1) status is no longer combined with the time spent in H-4 (or L-2) status to determine the time remaining in the six-year H1B limit (or the seven-year L1A limit or the five-year L1B limit). They want to know if they can ask for extensions immediately, based upon the decoupling provisions. Again, the answer is yes.

This change in how the time is counted opens up opportunities for many different strategies. To begin, individuals in the process of filing extensions should make sure that they are requesting the maximum time possible. Some examples of the differences between the old rule and the new “decoupling” rule follow. The examples assume that the foreign nationals are from countries experiencing retrogression (nonavailability of immigrant visa numbers).

Examples of Advantages of Decoupling

Example 1

Person A comes to the U.S. as an H-4 status holder and remains in that status for two years. Person A then changes from H-4 to H1B status for two years. No green card case has been filed. Person A is now seeking to change companies and continue working in H1B status.

Old Rule (Only Two More Years)

Under the old rules, prior to decoupling, this person would add the time spent in H-4 status to that in H1B, and would be eligible for two more years in either H1B or H-4, for a total of six years. Any additional time would require a green card filing to qualify for extensions beyond the six-year limitation. S/he may be eligible for some recapture time, if there was any travel abroad during the H1B or H-4 stay. S/he could also leave the U.S. for a year and become eligible for another six-year stay in H1B or H-4 status.

New Rule (Four More Years)

Under the new rule, the time in H-4 and H1B would be counted separately. Thus, since Person A has only spent two years in H1B, s/he would be eligible for four additional years in this status. The employer could request a three-year H1B extension, as H1Bs can only be approved in maximum increments of three years at a time.

Example 2

Person B is working in H1B status. His/her spouse is also an H1B. Person B has held H1B for five and a half years. The employer filed a labor certification for B several years earlier, but the I-140 filed by the company was recently denied because Company B’s financial situation is weak. B’s company is going out of business and B has been told that his/her job is ending in a week. B’s spouse does not have a labor certification filed for her/himself.

Old Rule (Six Months)

Under the old rules, Person B would have six months of H1B or H-4 time left. S/he could not get an extension based on the old labor certification case, since the I-140 was denied. Any further extensions would require that a qualifying green card case be filed for either B or for B’s spouse. If it were filed for the spouse, B would only be able to extend in H-4 status. B’s chances of reaching the point of eligibility for further extensions would be enhanced if time spent abroad could be recaptured. That would make it more likely for either the spouse’s employer or a new employer for B to obtain a PERM approval and an I-140 approval before B’s H1B runs out.

If B can find a labor substitution case, the existing H1B may be extended on that basis. Care should be taken because there have been many instances of fraud in substitution cases. Also, it may possible for B to devise a strategy that involves starting a new green card case, but leaving the U.S. for a few months to bank some of the remaining six-year time. This would enable B to return and then extend the H1B status. B also could go abroad for a year and return for an additional six years in H1B or H-4 status.

New Rule (Six Months in H1B Status; Six Years in H-4 Status)

With decoupling, Person B would still just have six months left in H1B status. Six years of H-4 status would be available, however. This might permit B enough time to locate a new employer that would be willing to file a green card case. This potentially would give B the flexibility to stay in the U.S. in H-4 status while the green card case progressed to the point that s/he could qualify for H1B extensions beyond the six-year limits.

The new Memo also provides separate benefits in connection with H1B 7th-year extensions, unrelated to decoupling, that might help Person B. Under the new Memo, it is possible to obtain a 7th-year extension from abroad. Therefore, if B found a new job, the employer could apply for a six-month H1B extension. The new employer could also start a PERM labor certification case. If, by the end of the six months, the labor certification was approved, but the I-140 was not, Person B would not be eligible for an H1B extension. S/he then would have two options. If it were important that Person B remain in the U.S., s/he could change to an H-4 and then back to H1B once the I-140 was approved. (S/he could not work while in H-4 status.) Alternatively, Person B could leave the U.S. at the end of the H1B, and return on a 7th-year extension for up to three years in H1B status, after the I-140 was approved. S/he potentially could work for the employer remotely in the home country while in this period abroad.

Conclusion

As is evident here, the new Memo makes a variety of strategies possible that can permit additional extensions of the H1B and H-4 status. The same is true for those in L-1 and L-2 status. Those who are in the process of applying for these extensions may want to double check with their immigration attorneys to see if the Memo opens any new options for them.

This article was edited March 20, 2015 to update the link to the USCIS Interoffice Memo.

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