Chapter 10 - Period of Stay

A. Limitations on Periods of Stay

A beneficiary who has spent the maximum period of 5 years in the United States in a specialized knowledge capacity or 7 years in the United States in a managerial or executive capacity, or as a temporary worker (H nonimmigrant) or intracompany transferee (L nonimmigrant),^[1] may not be readmitted to the United States as a temporary worker or intracompany transferee, and USCIS may not approve a new individual petition for such classification, unless and until the beneficiary has resided and been physically present outside the United States for the immediate prior year.^[2] Brief trips to the United States for business or pleasure do not interrupt the required 1 year outside the United States, but do not count towards fulfillment of that requirement.^[3]

The limitations on periods of stay do not apply to beneficiaries:

• Who do not reside continually in the United States; and

• Whose employment in the United States is seasonal, intermittent, or consists of an aggregate of 6 months or less per year.^[4]

In addition, the limitations do not apply to beneficiaries who reside abroad and regularly commute to the United States to engage in part-time employment. The burden is on the petitioner and the beneficiary to establish that the beneficiary qualifies for an exception.^[5]

B. Extensions of Stay

Extensions can be granted in up to 2-year increments until the maximum period of stay is reached.^[6] Officers should combine periods of stay in the H and L categories in determining whether the beneficiary has reached the 5- or 7-year limitation, including periods of H or L stay for previous employers and not just the current employer.^[7]

An initial blanket petition is approvable for 3 years.^[8] Approving an amended blanket petition during this validity period does not affect a beneficiary’s period of stay; the validity period end date of the amended petition remains the same as the end date of the original approval. Requests to extend a blanket petition on a Petition for a Nonimmigrant Worker (Form I-129) may be filed up to 6 months before the expiration of the initial 3-year validity period, and the petitioner may request that such validity be extended indefinitely.^[9] If USCIS approves the blanket petition extension, the validity period begins the day after the expiration of the initial approval and continues indefinitely. If USCIS denies the extension request, the petitioner and its qualifying organizations must wait 3 years to file another blanket petition. In the interim, organizations must file individual petitions for beneficiaries.^[10]

The expiration of the blanket petition does not adversely affect an L-1 beneficiary’s status if the U.S. entity continues to have at least one foreign qualifying organization. If the petitioner fails to timely file a blanket petition extension, it may not transfer new employees or file a request to extend a beneficiary’s expiring L-1 status under the expired blanket petition. In that case the petitioner must file an individual petition. If the blanket extension is later approved, then the organization may resume transferring individuals under the blanket petition.^[11]

If a petitioner is requesting an extension of the L-1 blanket petition, the petitioner must provide the following evidence:^[12]

• A list of the beneficiaries admitted under the blanket petition during the preceding 3 years, with the following information for each beneficiary:

  • Positions held during that period;

  • The employing entity; and

  • The dates of initial admission and final departure, if applicable, of each beneficiary;

• A statement from the petitioner indicating whether it still meets the blanket petition criteria; and

• Documentation to support any changes in approved relationships and additional qualifying organizations.

C. Change from Specialized Knowledge Capacity to Manager or Executive (or vice versa)

When a beneficiary is initially admitted to the United States in a specialized knowledge capacity and is later promoted to a managerial or executive position, the beneficiary must have been employed in the managerial or executive position for at least 6 months to be eligible for the total period of stay of 7 years.^[13]

If the 6-month rule is met, and the beneficiary qualifies as a manager or executive, then USCIS may approve the extension of stay request. However, if the beneficiary travels outside the United States and seeks readmission, the beneficiary must consular process and obtain the appropriate visa to be readmitted to the United States.

Extensions for managers or executives where the prior approval was limited to a short period could be an indicator that the beneficiary was not eligible to extend beyond the 5-year mark due to the regulatory requirement. The beneficiary must qualify to be classified as a manager or executive at the time of filing.^[14]

The change to managerial or executive capacity must have been approved by USCIS in an amended, new, or extended petition at the time that the change occurred.^[15]

D. Change of Status

In addition to all the requirements governing the L classification, change of status requests to the L classification from another nonimmigrant classification must establish that: ​

• The beneficiary entered the United States legally;

• The beneficiary has never worked in the United States illegally, or otherwise violated the terms of their visa or nonimmigrant status; and

• The expiration date on the beneficiary’s I-94 has not passed.^[16]

Footnotes

[^ 1] Under INA 101(a)(15)(H) or INA 101(a)(15)(L).

[^ 2] See 8 CFR 214.2(l)(12)(i).

[^ 3] See 8 CFR 214.2(l)(12)(i).

[^ 4] See 8 CFR 214.2(l)(12)(ii).

[^ 5] See 8 CFR 214.2(l)(12)(ii).

[^ 6] See 8 CFR 214.2(l)(15).

[^ 7] For example, a beneficiary is present in the United States in L-1B nonimmigrant status for 3 years; the beneficiary was in H-1B nonimmigrant status for the 2-year period immediately preceding the change to L-1B status. The beneficiary is subject to the 5-year limit because the combined H and L stay in the United States is 5 years. As a result, the beneficiary cannot obtain an extension of L status.

[^ 8] See 8 CFR 214.2(l)(11).

[^ 9] See 8 CFR 214.2(l)(7)(i)(B)(2).

[^ 10] See 8 CFR 214.2(l)(14)(iii)(B).

[^ 11] See 8 CFR 214.2(l)(7)(i)(B)(2).

[^ 12] See 8 CFR 214.2(l)(4)(iii)(A).

[^ 13] See 8 CFR 214.2(l)(15)(ii).

[^ 14] See 8 CFR 214.2(l)(15)(ii).

[^ 15] See 8 CFR 214.2(l)(15)(ii).

[^ 16] See 8 CFR 248.1(b) for information on timely filing and maintenance of status, and circumstances when failure to file timely may be excused in the discretion of USCIS.