Pradeek’s Immigration Blogs

Changes to H-1B extensions beyond six (6) years

McClatchy reported on Monday January 8, 0218 that Jonathan Withington, chief of media relations for USCIS, said ” USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,”

There had been reports in the media that to implement President Trump’s “Buy Amerian, Hire American” executive order, DHS is planning on ending the ability of H-1B beneficiaries to extend H-1B status beyond six years which will result in mass deportations.

The law as it currently exists.

  • INA section 214(g)(4) states:

“In the case of a nonimmigrant described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant may not exceed 6 years.”

This means that H-1b beneficiaries are usually limited a maximum of six years of stay in H-1B status, and need to return to their home country for one year before they can reapply for H-1B status subject to the H-1B CAP numerical limitations of 85,000 visas a year.

On October 17, 2000 President Bill Clinton signed into law the American Competitiveness in the 21st Century Act (ac21). The bill was co-sponsored by nineteen (19) Republican Senators and five (5) Democratic Senators.   The Senate passed this bill with by a yea-nay vote of 96-1.  The purpose of the bill was to amend the Immigration and Nationality Act to increase the availability of H-1B visas and make it easier to hire skilled workers in the U.S.  Three provisions of AC21 relate to extending H-1B status beyond six years (6) years.

  • Section 104(c) of AC21 states:

“(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who–

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and
(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, 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.”
  •  Section 106 (a) of AC21 states:
“(a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), 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 is required for the alien to obtain status under such section 203(b)); or
(2) the filing of the petition under such section 204(b).”
  •  Section 106 (b) of AC21 states:
“(b) EXTENSION OF H-1B WORKER STATUS- 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.”

What Changes could the administration make?

The established practice of granting three (3) year extensions of H-1b status beyond six (6) years is authorized by Section 104 (c). The administration could interpret the term ” may grant” in Section 104 (c) as providing them with the discretionary power to not grant the extensions and stop approving three (3) year extensions beyond six years under Section 104 (c).
While it is clear that the language “may grant” does provide discretion to deny extensions, it is not clear that it provides the administration the power to deny all applications for an extension under 104 (c).  It should be noted that 104 (c) also states the beneficiary may apply for an extension and if the administration could deny all applications under 104 (c) without considering the merits of the application, then the part of section 104 (c) that states the beneficiary “may apply” would be seen to have no effect. While this would be a consideration in statutory construction,  it would be only one consideration among many and courts under the Chevron doctrine will be very deferential to the DHS’s interpretation of section 104 (c).

Will the administration be able to deny all extensions beyond six (6) years? 

Section 106 (a) states the six (6) year limitation shall not apply to those who have had 365 days pass after the filing of an immigrant Petition or Labor certification. Additionally, Section 106 (b) states the attorney general “shall extend”  H-1B status “in one-year increments.”  The statute appears to place a mandatory obligation on the administration to grant extensions of status in one-year increments.  Therefore, even if the administration decided to deny (3) year extensions under 104 (c) they may be required to extend status for the same beneficiaries in one-year increments under 106 (b).

How would the administration implement these changes? 

The USCIS has in 2001, 2003, 2005, and 2008 issued memoranda and guidance to execute and clarify AC21. In November of 2016, the Obama Administration passed long-awaited regulations to implement Ac21 that followed long-established practices.
While an administration is not always required to provide notice before withdrawing a policy memo or guidance, arguably the due process clause and the Administrative Procedures Act would require notice to be provided before long-standing policies and practices of an agency are changed. Any attempt to change policy that functions as a legislative rule would need to be made through notice and comment rulemaking per the APA.  Additionally, any changes to regulations already created through notice and comment by the Obama Administration would be required to be made through regulations after notice and comment procedures. An attempt by the administration to make changes without notice through guidance memo could face litigation.  While regulations can sometimes be created without notice and comment, through an exemption for good cause, national interest or foreign policy an attempt to do so would also likely face litigation. There is no reason to believe these changes will lead to deportations.

When would the administration implement these changes? 

As stated above before the administration makes changes to the long-standing practice of extending status beyond six (6) years under AC21, they would be expected to first publish a proposed regulation and then follow notice and comment procedures, before making changes through publishing a final rule. This is a lengthy process that takes many months and often takes years and is designed to provide sufficient notice to all parties concerned.  More clarity on what exact changes would be made will become clear if and when a proposed rule is published or a guidance memo is issued. When and how changes will, in fact, be implemented is unfortunately unpredictable until such time.

McClatchy reported on Monday January 8, 0218 that Jonathan Withington, chief of media relations for USCIS, said ” USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,”

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