According to a news report,1 the Department of Homeland Security (DHS) is considering ending the ability to extend H-1B visas beyond the six-year limit of authorized stay.
Historically, the extensions have been possible pursuant to the American Competitiveness in the Twenty-First Century Act (AC21), which previous administrations have interpreted as allowing such extensions. The current administration is reconsidering this interpretation in light of the administration’s “Buy America, Hire American” initiative. As this news report has caused significant concern for clients and employees, we have outlined below the potential implications of any reinterpretation of AC21 below.
What Does AC21 Provide?
Sections 104(c) and 106(a) of AC21 enable DHS to grant an H-1B extension to an H-1B worker beyond the six-year limit if certain milestones in the permanent residency process have been met.
Section 104(c) states that DHS “may grant” a three-year H-1B extension beyond the six-year maximum if the H-1B worker has (i) an approved employment-based immigrant visa petition (I-140 petition), and (ii) is eligible for lawful permanent resident status, but is unable to attain that status immediately due to “per country limits” on visa availability.
Section 106(a) provides for a one-year H-1B extension beyond the six-year maximum if: (i) 365 days have passed since filing the labor certification (also known as “PERM”) application on the H-1B worker’s behalf, or (ii) 365 days or more have passed since filing the I-140 petition.
Potential Changes and Implications
If DHS reinterprets the “may grant” language under section 104(c) as “discretionary,” DHS would not be required to grant three-year extensions to individuals with an approved I-140.
In contrast to the “may grant” language of 104(c) for three-year extensions, section 106(a) provides that the maximum six-year limit “shall not apply” to an H-1B worker who meets the requirements of this section and that the DHS Secretary “shall extend” the stay in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application. The word “shall” is typically read as mandatory; therefore, DHS would be required to approve one-year extensions for H-1B workers who meet the requirements of section 106(a) listed above.
Mitigation of Risk
To date, DHS has not confirmed or announced any intention to change its current practice of adjudicating H-1B extensions under AC21. However, to alleviate concerns for current employees, employers can contact counsel to determine which employees would be eligible for three-year extensions at this time. In addition, employers should contact counsel to discuss timing on initiating new labor certification/PERM cases for employees who have not yet reached the six-year limit to ensure they are initiated in time to meet the requirements under section 106(a) of AC21.
1 On December 30, 2017, the McClatchy DC Bureau reported this news, based on commentary from two sources within the DHS who were briefed on the proposal. The full report is available at: http://www.mcclatchydc.com/news/politics-government/white-house/article192336839.html.
Compliments of Littler, a member of the EACCNY