H-4 Time Does Not Count Toward Maximum Period on H-2 or H-3 Status

A foreign national may be admitted to the United States in H-2A or H-2B status for a maximum period of three years. A foreign national may be admitted to the United States in H-3 trainee status for a period of up to two years, and an H-3 participant in a special education program may be admitted to the United States for a period of up to 18 months.

At the end of the maximum period of stay, the foreign national must either change to a different status or depart the United States. With some exceptions, USCIS regulations provide that a foreign national who has been outside the United States for the requisite three months may be eligible for a new period of admission of three years in H-2 status. Further, USCIS regulations provide that a foreign national who has been outside the United States for the immediate prior six months may, generally, be eligible for a new two-year period of admission in H-3 trainee status or a new 18-month period of admission as an H-3 participant in a special education program.

On December 5, 2006, USCIS issued a memorandum stating that time spent as an H-4 and/or L-2 nonimmigrant does not count against, and is therefore, “decoupled” from, the maximum period of admission allowable as an H-1B and/or L-1 nonimmigrant respectively. All of the provisions of that memorandum remain in effect.

USCIS currently allows H-1B nonimmigrants to decouple H-4 time when calculating their maximum period of authorized stay. USCIS has determined that extending the decoupling policy to the H-2 and H-3 nonimmigrant classifications is appropriate because it is consistent with the statutory and regulatory framework along with the policy of promoting family unity.

USCIS is now clarifying that any time spent in H-4 status will not count against the maximum period of admission applicable to H-2 and H-3 nonimmigrants. Thus, a foreign national who was previously granted H-4 dependent status and subsequently is granted H-2 or H-3 classification may be eligible to remain in the United States for the maximum period of stay applicable to the classification. For example, a husband and wife who come to the United States as a principal H-2B and dependent H-4 spouse may maintain status for three years, and then change status to H-4 and H-2B respectively, as long as the change of status application is properly filed before the principal H-2B has spent the maximum allowable period of stay in the United States. Note that, upon the switch, the new “principal” foreign national would be subject to the H-2B cap.