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United States Government Clarifies, No Culling in H-1B Extension Policy

By: Angelita Chavez | January 22, 2018

By: Zoe Mirza

The H-1B visa program enables employers to recruit and hire foreign professionals to work in the United States for a temporary period as a specialty occupation. A person may hold H-1B status for two three-year increments, equaling a maximum of six years. However, an employee may receive extensions of H-1B status beyond the six-year maximum in certain cases. One such circumstance is when one is applying for Legal Permanent Residence through their employment.

Recently, there have been numerous articles reporting that the Department of Homeland Security (DHS) is proposing a new standard that would eliminate H-1B extensions beyond the standard six-years limit. The new standard arises from President Trump’s “Buy American, Hire American” executive order. This proposal, if passed, may potentially affect many H-1B workers and their families who have been waiting for their green card for years.

Under the current law, the American Competitiveness in the Twenty-First Act (AC21) enables extensions beyond the initial H-1B period of six years to foreign nationals with pending green cards petitions. However, DHS is supposedly evaluating the language in Section 104(c) of the AC21 provision, which states that “the DHS Secretary (formerly the Attorney General) “may grant” such an extension to an eligible H-1B worker who meets the requirements of this section until the adjustment of status application has been adjudicated.” DHS is interpreting the “may grant” language as discretionary, which means that DHS may, but is not required to, approve H-1B extensions.

After weeks of rumored articles, on January 8, 2018, U.S. Citizenship and Immigration Services (USCIS) made a statement that it is not considering changing its interpretation of section 104(c) of the American Competitiveness in the Twenty-First Act (AC21). Therefore, current employers of H-1B workers can apply for extensions beyond the six-year limit in one-year increments until their green card petition is adjudicated.

However, USCIS did comment that in order to carry out President’s “Buy American, Hire American” executive order, it will be considering a number of policy and regulatory changes for the future, including those that relate to employment-based visa programs. Until such time that a final rule is notified, any discussions in public media are merely speculations. Please be in touch with your immigration counsel for latest and verified news.

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