Proposal to Cancel H-1B Extensions Beyond the Normal Six Years

The Department of Homeland Security is considering new regulations to cancel the current H-1B extension requests beyond the normal six years of employment, according to a news report by the DC Bureau of the McClatchy newspaper. If the proposal gets implemented, more than one million H-1B workers could lose their status to continue living and working the United States.

The H-1B Visa Program was created by Congress to grant foreign high-skilled workers visa status to live and work in the United States. The normal maximum period of employment is six years. The spouses and children of H-1B workers may also stay with them in the U.S. Many of these H-1B workers also apply for permanent resident status based on sponsorship by their employers. However, due to visa backlog, many workers have to wait for long periods of time - often exceeding six years - before they may obtain a green card.

Consequently, Congress passed a law to allow these H-1B workers to extend their visa status beyond the normal six years under certain circumstances. Specifically, the American Competitiveness in the 21st Century Act (AC21) passed by Congress in 2000 provides two mechanisms for H-1B workers to request for extension of H-1B status beyond the normal six years.

First, Section 104(c) of AC21 authorizes approval of H-1B status beyond the six-year maximum period if an immigrant visa is unavailable to the beneficiary due to per-country cap limits in the applicable visa category. (India is the one of the most backlogged countries for employment-based visas.) Second, Section 106(b) of AC21 authorizes approval of one-year extensions of H-1B status beyond the six-year maximum period if 365 days have passed since the filing of a labor application or immigrant visa petition by an employer on behalf of the beneficiary.

Many thousands of H-1B workers have taken advantages of the above extension rules to continue their legal employment in the United States. The current administration is reviewing these rules for possible re-interpretation. According to the news report by McClatchy, memos are being circulated between the heads of DHS to determine whether the administration can reinterpret the "may grant" language of AC21 so as to stop granting extensions. Does "may" means that DHS can make decisions on these extension requests on a discretionary basis?

USCIS has not yet made any official statements on this proposal. However, the agency has been implementing a series of policy and regulatory changes based on the President’s Buy American, Hire American Executive Order. For examples, the wage levels of H-1B petitions have been scrutinized and green card applicants based on offer of employment are required to be interviewed. DHS is also taking actions to cancel the current policy of allowing H-1B spouses to work in the United States.

The potential impact of these proposed changes would be substantial and devastating. It is estimated that more than one million H-1B workers, many of them Indians, would be affected by these changes. Many of them have families and homes in the United States. Strong reactions and litigation are expected from these H-1B workers and the employers if the proposal does get implemented.

It is difficult to predict whether the administration will actually scrap the H-1B visa extension rules. However, it is a good precautionary measure for H-1B workers to submit their extension applications as soon as possible. Under the existing policy, eligible employees may request for up to three years of extension in one application. Hence, they should discuss and evaluate their situation with their employers and lawyers to see if extensions can be filed now.