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Trump Administration Rumored to Seek Elimination of Certain H-1B Extensions

5 Jan

The McClatchy DC Bureau has recently reported that the Trump Administration is considering new regulations that would eliminate H-1B extensions for H-1B workers who have reached certain milestones in the permanent residency process, in furtherance of President Donald Trump’s “Buy American, Hire American” agenda.  The McClatchy article reports that “The administration is specifically looking at whether it can reinterpret the ‘may grant’ language of the American Competitiveness in the 21st Century Act to stop making the extensions.”

What Provisions Are Considered for Elimination?

There are two H-1B extension provisions of the American Competitiveness in the Twenty-First Century Act (AC-21).  Only one of the two provisions uses the permissive “may grant” language referenced in the report.

Section 104(c) of AC-21 provides that U.S. Citizenship and Immigration Services (CIS) “may grant” an extension of H-1B status to the beneficiary of an approved immigrant petition so long as there is no immigrant visa available to the applicant under the annual quota for immigrant visas.  In other words, if the applicant has cleared the preliminary steps of the permanent residency process but is unable to complete the final step to be approved for permanent residency simply due to the 1960’s-era annual quota on immigration, the applicant is eligible for additional extensions of H-1B status in 3-year increments until such time as an immigrant visa is available under the quota system.

The second AC-21 H-1B extension provision is mandatory.  The statutory language requires the CIS to extend the H-1B status of the beneficiary of an I-140 petition or PERM labor certification application in one-year increments so long as the petition or application was filed at least one year before the expiration of the applicant’s normal six-year maximum H-1B eligibility.  In other words, if the applicant is making progress through the permanent residency process but that progress is slow due to the length of time it takes the U.S. Department of Labor and U.S. CIS to adjudicate applications and petitions, the CIS must extend the individual’s H-1B status.

Can the Trump Administration Eliminate these Extensions?

Because the one-year extension provision of AC-21 is mandatory, any effort to eliminate that provision of the law would require an act of Congress.   Efforts to eliminate the three-year extension provision would require, at a minimum, publication in the Federal Register with allowance for the full notice and comment period required under the Administrative Procedures Act.  Further, even with such prior notice and comment, such a regulation would face certain legal challenge.
These commonsense provisions of AC-21 permit those who have established lives in the United States in reliance on the H-1B program and have reached certain milestones in the permanent residency process to continue their employment in the United States while waiting to complete the permanent residency process.  These provisions were also passed by Congress to help give the government (CIS) time to eliminate the backlog in processing immigration benefits, and that backlog remains.  Additionally, as indicated by the title of the law itself, the provisions were intended to help America and its U.S. employers remain competitive in the world.  Any other outcome would be contrary to the intent of Congress in the establishment of these provisions of AC-21.

Would this Really Impact Hundreds of Thousands of H-1B Workers?

Because the Trump Administration alone cannot eliminate the one-year extension of H-1B status under AC-21, and probably cannot lawfully eliminate all of the three-year extensions, the anticipated impact of the Administration’s efforts to eliminate H-1B extensions for those workers in the middle of the permanent residency process may have less impact than the Administration might hope.  Most applicants who would qualify for the “permissive” three-year extension would also qualify for the mandatory one-year extension.  Additionally, rulemaking that purports to completely eliminate the three-year extension would be vulnerable to significant legal challenges, and possibly even injunctive relief such as a temporary restraining order prior to the effective date of the proposed regulation.

What Should H-1B Petitioners Do?

H-1B petitioners should continue filing extensions on behalf of their H-1B workers as soon as they become eligible.   In most cases, extension petitions can be filed within six months prior to a worker’s existing H-1B status expiration, or earlier if there has been a change in the terms and conditions of employment that may require an amendment.  Employers should contact their Foster immigration attorney to initiate H-1B extensions and amendment petitions as needed.  Employers should also contact their Foster attorney to begin the permanent residency process on behalf of H-1B employees filling key positions within the organization in order to minimize the impact of any future restrictions on H-1B extension eligibility.