Over the last two days, the media has been reporting that the Department of Homeland Security (DHS) is considering aggressive new measures that would potentially reduce or eliminate certain H-1B extensions available under the American Competitiveness in the Twenty-First Century (AC21) Act to individuals seeking green cards who are in lengthy backlogs. In furtherance of the “Buy American, Hire American” executive order that the President signed in 2017, the DHS is supposedly considering measures that would limit the availability of the extensions to individuals who have completed 6 years in H-1B status and are unable to become permanent residents, notwithstanding sponsorship, due to the per country limitations of current U.S. immigration law.
1. What is the current law with respect to H-1Bs?
Generally, a worker can spend a maximum of 6 years in H-1B status in the United States with one employer or a combination of employers. Typically, a worker will need to transition to another work authorized status or depart the United States for at least a year before becoming eligible for H-1B status again. Employers typically sponsor H-1B workers for permanent residency with the intent of transitioning them from this status to their “green cards”. While many employees successfully complete this transition before they finish 6 years in H-1B status, the “per-country” limitations of the Immigration and Nationality Act have resulted in extended wait times for citizens of India, China, and the Philippines to become permanent residents, depending on the category of sponsorship. In some instances, these wait times easily exceed 10 years.
2. What is AC21 and what are the exceptions to the 6-year H-1B limit?
To address the issues above, Congress enacted two statutory exceptions to the 6-year H-1B limit through the American Competitiveness in the Twenty-First Century Act (AC21) of 2000.
The first exception, under §104(c) of AC21, allows an employer to apply for extension of H-1B status past the 6-year limit where an employee is the beneficiary of an approved employment-based immigrant/permanent sponsorship petition (Form I-140) and a visa number is unavailable due to the per-country limitations. The statutory text states that the government “may grant” a request for extension of status for up to a 3-year period. Through policy memorandum, USCIS has stated that such extensions should be continually granted until the person becomes eligible to apply for a green card and that the “one-time” language is not limiting.
The second exception, codified at §106(a) of AC21, states the government “shall extend” H-1B status in 1-year increments where 365 days have passed since the filing of a labor certification (often a precursor to the filing of an I-140) or an I-140 petition for permanent residency until such time “as a final decision is made on the alien’s lawful permanent residence.” The statutory text makes no reference to the unavailability of such extensions as a result of a decision on a PERM or I-140 visa petition.
3. What changes to these guidelines does DHS appear to be contemplating?
News reports indicate that DHS is contemplating limiting the availability of the extensions based on the permissive language of AC21 § 104(c). The reports are based on leaked internal memos from DHS.
The DHS has not provided a statement in response to these media reports.
4. Who would primarily be impacted?
The impact of these changes, if enacted, would be felt most acutely by employers of citizens of India, China, and the Philippines on H-1B visas.
5. How likely is it these changes will occur?
These reports are very concerning for both employers that have invested in sponsoring employees for permanent residency and for employees that have established lives in the United States over many years.
However, it is unclear whether the administration would take this step and if it has the legal authority to do so. Any such action is likely to invite a legal challenge from employers and affected individuals based on a variety of grounds, including but not limited to the Administrative Procedures Act.
Additionally, the mandatory language of AC21 §106(a) suggests that even if DHS was to successfully suspend the availability of the 3-year extension in 104(c), the 1-year extension would still be available to employers and employees. This would, of course, lead to a counterproductive and bizarre need for employers to renew H-1B status in 1-year increments rather than 3-year increments, creating more processing delays, expense, and uncertainty.
6. What should employers do now?
Employers should begin identifying their affected populations and communicating with the affected group about the employer’s awareness of these changes under consideration. The employer should also consider issuing a FAQ if DHS enacts any changes. Finally, during these turbulent times, while employers cannot change the availability of green cards, starting the green card process well before a person has completed 6 years in H-1B status is always a best practice and will continue to serve their retention goals and employees well.