January 10, 2018 UPDATE: The McClatchy DC news service reported that U.S.
Citizenship & Immigration Services (USCIS) has stated that it is
NOT considering a change to the H-1B extension rules which apply to petitions
seeking extension of H-1B status beyond the six-year limit, as previously
reported. USCIS noted that H-1B workers who would have been impacted by
the purported changes would have been able to continue to extend their
status under section 106(a) of AC21. However, USCIS did state that the
agency is seeking other measures including a “thorough review”
of employment based visa programs to carry out the President’s “Buy
American, Hire American” executive order.
Currently, H-1B workers who are in the lawful permanent residency process
are able to obtain extensions beyond the normal six-year limit of authorized
stay in H-1B status. The Department of Homeland Security is reportedly
considering new regulations that would prevent such extension of H-1B
status during the residency process.
The American Competitiveness in the Twenty-First Century Act (AC21) has
two provisions, section 104(c) and 106(a), which authorize extension of
H-1B status beyond the six-year limit for those who have reached certain
milestones in the residency process. The Department is reportedly determining
if such extensions are discretionary such that they have the authority
to stop granting extensions under these provisions.
The Department has a long-standing practice in adjudicating extension petitions
under AC21, any changes to procedures would be require the Department
to issue a proposed regulation and go through the notice and comment rulemaking
procedures set forth in the Administrative Procedure Act, which would
likely take months and could be subject to litigation.
Given the particular language used in sections 104(c) and 106(a), H-1B
workers who could be impacted by the purported changes should be able
to continue to extend their status under section 106(a) of AC21 if they
have met the required milestone in the residency process, which would
allow for extension of H-1B status beyond the six-year limit in one-year
increments as opposed to three-year increments authorized under section 104(c).
The Department continues to make changes arising from President Trump’s
“Buy American, Hire American” executive order which impact
employees in H-1B status as well as their employers including a policy
issued in October 2017 which superseded and rescinded prior guidance instructing
adjudicating officers to provide deference to prior determinations of
eligibility when adjudicating extension petitions. There has been a stark
increase in the Requests for Further Evidence (RFEs) issued on H-1B petitions,
requiring employers to overcome many additional hurdles in order to gain
approval of an H-1B petition.
Salas Law has over a decade of experience in immigration law, our attorneys
are experienced in representing clients in the H-1B process and have many
years of experience in responding to government requests and obtaining
favorable outcomes. If you have any questions regarding your case, please
contact an experienced Immigration Attorney in Williamson County.
Our attorneys can help guide you through any immigration matter. Call (512)
253-4202 to learn how we can help in your case.