Department of Homeland Security Reportedly Considering Changes to H-1B Extensions Beyond Six Years

Thousands of H-1B workers, including upwards of 500,000 H-1B workers from India, may be unable to continue working indefinitely in the US, and may need to wait abroad for years, if a proposal by the Trump administration not to extend H-1B visa status beyond the six-year limit for those waiting for permanent residency (green card) is implemented.
It is reported that the Department of Homeland Security is considering new regulations that would prohibit H-1B certain extensions beyond the statutory six-year maximum as part of President Trump’s “Buy American, Hire American” initiative.

Under 8 CFR §214.2(h)(13)(iii), foreign nationals are allowed six years of H-1B status with each petition requesting up to three years at a time. However, under two provisions of the American Competitiveness in the Twenty-First Century Act (AC21), indefinite extensions are allowed for foreign nationals who are the beneficiaries of a pending legal permanent residency (“green card”) process. According to PL 106-313, §106(a), AC21, H-1B status shall be extended in one-year increments indefinitely beyond the six-year limitation if a labor certification or Form I-140 immigration visa petition was filed at least 365 days prior to the expiration of H-1B status. According to §104(c) of this Act (and a USCIS policy memo by Yates, Assoc. Dir. Operations, USCIS), H-1B status may grant an extension in three-year increments indefinitely beyond the six-year limitation for beneficiaries of approved EB-1, EB-2 or EB-3 Form I-140 immigrant visa petitions who are unable to file to adjust status to legal permanent residency or acquire an immigrant visa abroad because of per country limitations (immigrant visa number backlogs).

Because there is an extremely long wait for certain green card applicants, particularly for foreign nationals who were born in India, hundreds of thousands of these foreign workers from these countries may wait an average of 10 to 12 years to obtain legal permanent residency. There are 400,000 immigrant visa numbers available each year for a foreign national to obtain legal permanent residency based on employment and these visas are allocated evenly among all nations. This inevitable results in a backlog for nationals of high demand countries such as India. Currently, the US Department of State Visa Bulletin shows that the priority date, or place in line, for foreign nationals from India in the EB-2 category is November 22, 2008, and for EB-3 is November 1, 2006. Numbers do not move consistently each month and some months they may freeze or even regress. Because of the law allowing for indefinite extensions of H-1B status until their green card processing is completed, foreign nationals are allowed to remain in the US and work during this period.

DHS is considering ending the extensions of H-1B status under §104(c), by reinterpreting the “may grant” language as discretionary. However, §106(a) of AC21 provides that the six-year H-1B period “shall not apply” to H-1B workers who fall under this section and that DHS “shall extend” their H-1B status in one-year increments until a final decision has been made on their application to adjust status to legal permanent residency. The word “shall” should be read as mandatory, and therefore DHS would be compelled to grant indefinite one-year extensions under §106(a). Therefore, H-1B workers who would not qualify for the three-year indefinite extensions under §104(c) could still be eligible for indefinite one-year increments of H-1B status under §106(a).

In order for such changes to be implemented, DHS needs to follow the Administrative Procedures Act and issue a proposed regulation and follow the notice and comment rulemaking procedures. This process could take many months. Furthermore, any such proposal could be the subject of litigation, which is almost undoubtable.
Although it has becoming increasingly challenging to obtain H-1B status, including increasing fees and setting higher standards for proving a position is a specialty occupation, demand for H-1B visas remains high. US employers allege that there is a dearth of qualified US workers with at least a bachelor’s degree in a STEM (science, technology, engineering, math) field.

There are many compelling arguments for retaining the H-1B extension rules. Chief among them is that the H-1B foreign-born skilled worker pays US taxes, bolsters the country’s economy and fills a need for STEM workers. Many technology experts have warned that if the US excludes them, then it will only benefit their home countries, since they will simply return home and start successful new companies, such as Facebooks and Ubers, something that US technology experts state is already happening in China.