UPDATE FROM AILA 01/09/2018 

“In a news update on January 8, 2018, the McClatchy DC news service reported
that the U.S. Citizenship and Immigration Services (USCIS) has stated that it not considering a
regulatory change to the H-1B extension rules, as had previously been reported in a December 30,
2017 article by McClatchy DC. In particular, USCIS stated to McClatchy DC that the agency is
not considering changing its interpretation of section 104(c) of the American Competitiveness in
the Twenty-First Century Act (AC21), which provides for H-1B extensions beyond the six-year
limit for H-1B workers who have reached certain milestones in the green card process. USCIS
went on to note that “such a change would not likely result in these H-1B holders having to leave
the United States because employers could request extensions in one-year increments under
section 106(a)-(b) of AC21 instead.” USCIS did, however, indicate that the agency is considering
a number of policy and regulatory changes to carry out the President’s Buy American, Hire
American” executive order, including conducting a “thorough review” of employment-based visa
programs.”

Over the last few days, news has spread regarding potential new regulations that could greatly impact H-1B extensions beyond the 6 year limitation. The word around town is that the Department of Homeland Security (DHS) has discussed the idea to stop H-1B extensions beyond the 6 year limit based on certain language found under the law.

Under the law, the maximum period of stay in H-1B status is 6 years. Once the 6 year limit is reached, the individual will usually need to return to their home country. The law also provides for certain exemptions to the 6 year limit rule. The American Competitiveness in the 21st Century Act (AC21) provides 2 exemptions from this rule:

• Section 104(c) provides that the beneficiary of an I-140 – Employment Based Immigrant Petition – who is eligible to be granted a green card but for the 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.

• Section 106(a) states that the 6 year limitation “shall not apply” to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant 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 (if such certification for the alien is required to obtain status); or

2. the filing of the I-140 Immigrant Petition.

Additionally, AC21 states that the “Attorney General shall extend” the stay of an alien who qualifies for an exemption under 106(a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.

The use of the word “may” in Section 104(c) is causing many to speculate about the administration’s ability to interpret the language to its benefit. After all, the language in 104(c) is in contrast to the word “shall” used in Section 106(a) above.

The articles published over the weekend indicate that the DHS may attempt to reinterpret the language“may grant” as an avenue to stop issuing 3 year H-1B extensions beyond the 6 year limit (based on an approved I-140 Immigrant Petition). The question is, will the administration actually make good on these rumors?

For now, there is no way to know for sure whether the administration plans to do away with this extension. Based on the plain language of the statute, it certainly seems possible. Even so, this change would not happen overnight. The potential regulation will have to go through the entire regulatory process.

As my colleagues pointed out, this topic is not even listed in the DHS regulatory Unified Agenda for 2018. If a change is planned, we should know about it in advance.

For argument’s sake, even if the administration were to do away with the 3 year extension beyond the 6 year limit based on an approved I-140, the language in Section 106(a) still stands. This means that a beneficiary would still be able to receive extensions in 1-year increments if a labor certification or I-140 is filed on their behalf 365 days prior to the 6 year limit.

As of now we see no definitive plan to implement this drastic change.

Remember, you are still eligible to receive extensions beyond the 6 year limit based on both exemptions described above.