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order which impact employees in H-1B status as well as their employers including a policy issued in October 2017 which superseded and rescinded prior guidance instructing adjudicating officers to provide deference to prior determinations of eligibility when adjudicating extension petitions.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.

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