Normally, an individual is limited to being physically present in the United States in H-1B status for an aggregate of six years. In October 2000, the American Competitiveness in the Twenty-First Century Act (AC21), established the ability for a person to obtain an extension of his or her H-1B status beyond the six-year limit if certain milestones in the green card process have been reached. Specifically, section 104 (c) allows for a three-year extension of H-1B status if the person is a beneficiary of an approved employment-based immigrant visa petition (I-140 petition) under the employment–based first, second, or third preference (EB-1, EB-2, or EB-3) visa category, and is eligible to be granted lawful permanent resident status but for per country limits on visa availability. The statutory language of section 104(c) provides that the DHS Secretary “may grant” such an extension to an eligible H-1B worker who meets the requirements of this section until the adjustment of status application has been adjudicated. Such extensions have been routinely adjudicated by DHS in prior years based on that statutory provision and prior policy guidance.
Earlier this year, it was reported that DHS was considering changing its interpretation of the “may grant” language in the statute as a way to limit an applicants’ ability to obtain a three-year extension of H-1B status, beyond the six-year limit under section 104(c). On 8 January 2018, the McClatchy D.C. news service reported that the U.S. Citizenship and Immigration Services (USCIS) is not considering changing its interpretation of section 104(c). USCIS did 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." It remains to be seen whether DHS will change its prior approach to adjudication of these requests for a three year H-1B extension under section 104(c) that have been critically important especially for Indian and Chinese nationals who are subject to long delays in their green card process due to per country limits.