Proposed H-1B Changes Threaten Thousands of Workers (Updated)
Several sources are reporting that the Department of Homeland Security (DHS) is considering major regulations that would prohibit H-1B workers in the lawful permanent residence process from extending their H-1B status past the six years. The potential change reportedly responds to President Trump’s executive order, “Buy American, Hire American,” and depends on the language of extension outlined in the American Competitiveness in the Twenty-First Century Act (AC21). The proposal would follow a series of anti-immigration policies from the executive, and aims to force thousands of workers out of the United States.
The AC21
Under the AC21, two sections,104(c) & 106(a), allow the DHS to grant an extension of H-1b visas for a period of one to three years. According to reports, DHS will reevaluate the language of section 104(c), which states that DHS “may grant” an extension of a H-1B visa if certain criteria are met. Currently 104(c) states that DHS “may grant” a three-year extension of H-1B visas only for workers who have been approved for I-140 petition and who are eligible to be granted lawful permanent resident status. Similarly, section 106 (a) states that DHS “shall extend” a one-year extension of H-1B privileges if 365 days or more have passed since the filing of a LCA on behalf of the H-1B worker or 365 days or more have passed since the filing of an I-140 petition. The “may grant” language in section 104 (c) could lead to the “self deportation” of thousands of workers waiting for their green card.
The Change
The current administration reportedly is reevaluating the meaning of the “may grant” language of section 104(c) of AC21. Due to the loose language of “may grant,” DHS is not required to approve the three year H-1B extensions. Therefore, the number of extensions through section 104(c) would drastically decrease if DHS reinterprets AC21. For an extension of a H-1B visa, all applications would then be restricted to section 106(a), which must be renewed yearly until a worker is approved for permanent residency. Many workers will be at risk of expired H-1B visas. For those awaiting a green card decision, the DHS change could mean more hassle and greater trouble for H-1B workers.
Response (Update)
The rumored proposal sparked outrage among H-1B workers and their employers. In response, several Congressmen wrote a letter to the president condemning the proposed changes, which elicited a response from USCIS. According to McClatchy, on January 8th Jonathan Withington, chief of media relations for USCIS claimed that “USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit.” However, the USCIS representative went on: “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.” Even with this reassurance, many are uncertain about the Trump Administrations efforts to harm immigrant workers. Minimal changes to the H-1B extension process can mean extreme headache and effort on the part of immigrant workers.