Will DHS Make Changes to AC21 H-1B Extension?

Practice Areas

By: Gladys V. Gervacio and Omar Nazarkhan

Update: AILA updates practice alert noting USCIS is NOT considering change to AC21 H-1B Extension rules.

(AILA Doc. No. 18010437, Posted 1/9/18)

We have come across recent reports and rumors from a few media sources that seem to report that the Department of Homeland Security’s (DHS) intends to reverse its policy in granting extensions to certain H-1Bs workers who meet the provisions of the American Competitiveness in the 21st Century Act (“AC21”). We want to make clear, however, that, at this time, the DHS has not formally issued any announcements to corroborate these reports.

The American Immigration Lawyers Association (AILA), which represents more than 15,000 attorneys and law professors, has issued a recent memo commenting on this issue. In particular, it addressed two provisions of the American Competitiveness in the 21st Century Act (“AC21”): Section 104(c) and Section 106 (a).

These two sections, address the DHS’s power to approve certain H-1B extensions beyond the six-year maximum period of stay allowed. Whether the extensions are granted at 1-year or 3-year intervals depends on these above provisions.

H-1B Extension Beyond Six-Year Limitation Under AC21
AC21 Provision Section 104(c) “provides 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”. Section 106(a) “provides that the maximum six-year limit ‘shall not apply’ to an H-1B worker who meets the requirements of this setay in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application.
Requirements for an H-1B Extension beyond the Sixth-Year Enables a three-year H-1B extension beyond the six-year maximum period if an H-1B worker:

  1. has an approved employment-based immigration visa petition (I-140 petition) under the EB-1, EB-2, or EB-3 visa category, and
  2. is eligible to be granted lawful permanent resident status but for per country limits on visa availability.
Enables a one-year H-1B extension beyond the six-year maximum period if:

  1. 365 days or more have passed since the filing of a labor certification application on the H-1B worker’s behalf, or
  2. 365 days or more have passed since the filing of an I-140 petition.

Cited from AILA Doc. No. 18010437 (1/4/18): Practice Alert: DHS Reportedly Considering Changes to H-1B Extension Rules

Although the Attorney General does have discretion to grant an extension to an eligible H-1B worker under §104 (c), the statute mandates that under §106 (a), the Attorney General “’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.

What Employers and Employees Should know.  Ultimately, for the DHS to proceed with any new regulation, the change must first comply with the procedures detailed within the Administrative Procedures Act (APA), which governs agency rulemaking. A failure in meeting the requirements under the APA may lead to litigation. It is important to understand that this is not an overnight occurrence, and will take time to work through.

Our conclusions from these reports align with those set forth by AILA. Now, more than ever, it is imperative for employers to seek and rely on information regarding this and other immigration-based issues from trusted and reputable news outlets and legal professionals so that they may, in turn, better inform and advise their own employees.

How Employers Can Stay Updated on Immigration.  Chugh, LLP will continue to monitor the next stages of this issue should they unfold. Feel free to contact us for more information at info.chugh.com. We also encourage you to subscribe to our newsletter at www.chugh.com, and to share this and other alerts with others who might benefit from its content.

Resource:

AILA. Doc. No. 18010437. (Posted 1/4/18): Practice Alert: DHS Reportedly Considering Changes to H-1B Extension Rules

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