Headlines spotted in India today:
“Trump administration considers proposal that may send back more than 500,000 Indian tech workers”
“Proposed tweak in H-1B visa rules may deport thousands of Indian workers”
“New H-1B rules: Deportation of visa holders awaiting green card?”
An article published over the weekend suggested that sources within the Department of Homeland Security have been briefed on the idea of new regulations that would prevent H-1B holders from obtaining extensions beyond the six-year limit under AC-21. Can they actually do that?
The American Competitiveness in the 21st Century Act (AC-21) was passed by Congress and signed into law by President Clinton in October 2000. There are two parts of the law that relate to H-1B extensions beyond the six-year limit.
Section 104(c) provided protection under the per country ceiling by stating that any alien who is the beneficiary of an employment-based petition (I-140) and is eligible for the green card but for application of the per country limitations “may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon.”
The internal memo may be pointing to the the use of the word “may” to suggest that the H-1B extension under 104(c) is discretionary and that Attorney General could just choose not to grant those extensions.
However, there is another section of AC-21, which uses slightly different language for the exemption from the six-year limit in one year increments:
Section 106(a) says that the six year limit “shall not apply” to any nonimmigrant alien previously issued a visa or otherwise provided H-1B status on whose behalf a petition has been filed, if 365 days or more have elapsed since:
(1) the filing of a labor certification application on the alien’s behalf; or
(2) the filing of the I-140 petition.
Further, “[t]he 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.”
Let me start off by clarifying that there is no new H-1B rule. H-1B extensions beyond the six year limit continue to be granted based on approved I-140 petitions or labor certifications filed more than one year ago.
Nothing has actually been proposed yet. Before a regulation is proposed, it would appear on the Unified Agenda, which reports on the actions that agencies plan to issue in future. H-1B regulations fall under the Department of Homeland Security. This agency has already published its agenda for Fall 2017. Two regulatory changes we can expect to see from DHS in the coming months include:
- changes to the H-1B lottery process by using an electronic registration (proposed rule expected February 2018)
- changes to the definitions of specialty occupation and employer-employee relationship and additional wage requirements (proposed rule expected October 2018)
There is currently no entry in the Unified Agenda relating to limiting H-1B extensions. If DHS does propose such a change, it would be published in advance and go through a notice and comment period.
Also, the law that created the exemption from the six year limit cannot be changed by the Department of Homeland Security or President Trump. Only Congress can change the law. Under Section 106(a) Congress was pretty clear that the six year limit does not apply when a labor certification or I-140 petition was filed more than a year ago and the H-1B can be extended one year at a time until a decision is made on the H-1B worker’s permanent residence.
This looks like another way for Trump to accomplish some campaign promises while actually not changing anything. Keep informed and be ready to reach out to legislators, comment on proposed regulations, and, if all else fails, take them to court.