On Tuesday, January 9, 2018, a spokesperson for US Citizenship and Immigration Services (USCIS) denied reports that the agency was considering a change in interpretation of a law that allows H-1B visa holders to remain in the United States while awaiting an immigrant visa (green card) to become available. (See the Mayer Brown Legal Update dated January 4, 2018.) According to an article published by McLatchy DC Bureau, the Trump administration has reportedly backed off on plans to do away with the three-year extensions of stay because of “intense pressure from the business and technology communities.” A letter sent to the White House last week by Congressional Caucus on India members Kevin Yoder (R-Kansas) and Tulsi Gabbard (D-HI) and obtained by McLatchy urged the president to reconsider, saying, “We strongly believe this action would be harmful to the American economy, credibility, and relations with India and the Indian-American community.” The US Chamber of Commerce also weighed in against the reported change in policy.
While acknowledging that it is “considering a number of policy and regulatory changes to carry out the president’s ‘Buy American, Hire American Executive Order,” USCIS advised McLatchy that it was never considering changing its interpretation of section 104(c) of the American Competitiveness in the Twenty First Century Act, which provides for extensions of stay beyond the statutory six-year H-1B limit for those foreign nationals affected by the per-country limitation on allocation of immigrant visa numbers. A separate provision allowing for one-year extensions of H-1B status to account for agency processing delays would not have been affected by the change.