Changes Feared for H-1B Extension Provisions

With the H-1B cap season on the minds of many, it’s hard not to see some malicious design in recent reports of possible changes to H-1B extensions.  Was this information leaked in an effort to discourage employers and candidates from applying for future visas?  We simply don’t know.  However, it’s important to separate fact from conjecture as misinformation on this topic is spreading.

H-1B extensions are of particular importance to nationals of India and China.  Backlogs in the availability of green cards for these countries (referred to as priority dates) make it impossible to get a green card before their initial eligibility period ends (6 years).  Though they filed everything diligently, some have been waiting for more than a decade for their green card to be issued.   Many of these individuals own homes, have U.S. citizen children in school, and have extensive ties to the U.S.  Ongoing visa extensions are a lifeline for living and working in the United States.

So, What Happened?

Nothing official--- yet. 

News sources report that DHS is considering a new interpretation of AC21 provisions regarding extensions of H-1B visas, often referred to as 7th Year Extensions.  These proposals are supposedly in a memo being circulated and discussed by agency heads, but no actual details have been published.  Sources who claim to have reviewed the memo say it contains a reinterpretation of the "may grant" language of the American Competitiveness in the 21st Century Act  (AC21). 

Prior to AC21, anyone with a backlogged priority date who maxed out on H-1B time was forced to leave the U.S. while they awaited green card processing or became eligible for another H-1B period.  Congress solved this issue with AC21; providing two mechanisms for allowing H-1B extensions beyond six years.  These provisions, Sections 104 and 106, are only available to H-1B workers who have started the green card process and have completed certain processing milestones.

Not so long ago, November 2016 to be exact, the Final Rules to AC21 opened by stating,  "Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.  ... (O)ne of the principal purposes for the enactment of AC21 was to improve the country's access to high-skilled workers. AC21 therefore contains several additional provisions intended to expand and strengthen the H-1B program."   Absent formal rulemaking, this statement continues to provide the basis for review of any changes to regulatory interpretation.

Extensions Under AC21 Section 104(c)--- The 3 Year Extension

This section states that an individual may be granted an extension of status in three-year increments based on an approved immigrant petition for alien worker (form I-140) with a non-current priority date.  This is the more vulnerable of the two provisions, since the "may" language suggests an exercise of discretion on the part of the Service.  

For more than seventeen years, the USCIS has not exercised its discretion to deny extensions filed under 104(c).  It's possible that the Trump Administration will direct USCIS to stop exercising such discretion.  However, such a move would be immediately challenged in the courts.

Extensions Under AC21 Section 106(b)--- The 1 Year Extension

A worker is eligible for an extension of H-1B status in one-year increments beyond the six-year maximum, based on a labor certification or I-140 petition filed at least 365 days prior.  This section states that the Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.

Any attempt to reinterpret this section will be met with litigation.  That doesn't mean that reinterpretation will not be attempted, but it is not likely to be a successful tack by the administration.  This provision is statutory (that is, law), and would require Congressional involvement to be altered.  We expect the one-year extension to withstand.

The Takeaway

Remember that this potential change has not been officially published and is merely speculative at this time.  Remain vigilant and informed, but don't assume the worst.  Those who are eligible for PERM or I-140 submission should continue to file those cases as promptly as possible and should avoid "running out the clock" on their H-1B status.

Many industries (such as staffing companies) are already familiar with one year H-1B terms, given the nature of their client work orders.  Should 104(c) be threatened, the one-year extensions of 106(b) are expected to remain available in the same way they are utilized today.

For others, the loss of three-year extensions would pose increased costs of filing annually and a higher potential of RFE.  Neither of these challenges should be seen as an insurmountable obstacle and readers should continue to expect extensions, albeit perhaps in a more limited way, while they await completion of their LPR status.