In a Policy Memorandum dated November 11, 2013, USCIS has stated that time spent in the U.S. in H-4 status does not count against future time limits in H-2 or H-3 status.
As background, a foreign national spouse in the U.S. in H-4 status is authorized to stay in the U.S. only so long as the principal alien. There are time limits on most nonimmigrant stays in the U.S. If the foreign national dependent spouse later seeks to be re-classified as a principal alien in certain non-immigrant classifications, the question remains whether previous time in dependent H-4 status will count against future time limits as a principal alien. In December, 2006, USCIS determined that time in H-4 status spent by a spouse of an H-1B nonimmigrant does not count toward future time limits if the dependent spouse seeks to become a principal alien in H-1B status, nor does time spent by a spouse in L-2 status count against future time limits if the dependent spouse seeks to become a principal alien in L-1 status. USCIS had been silent about whether the same rule applied to H-4 status if the dependent spouse seeks to become a principal alien in H-2 or H-3 status.
Now USCIS has supplemented and extended its policy to include future time H-2 and H-3 status. USCIS states that these changes are appropriate because they are consistent with overall statutory authority and because they promote family unity, resulting in a harmonious application of law. Thus, a foreign national spouse in the U.S. in H-4 status eligible to be granted H-2 or H-3 status, can remain in the U.S. for the maximum time permitted by each respective classification without subtracting time previously spent in H-4 status.
Stewart Rabinowitz practices United States immigration and nationality law. He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. Rabinowitz & Rabinowitz, P.C. is an immigration law firm representing businesses, families, and individuals.