Trump Administration Backs Down After H-1B New Years’ Eve Scare

On December 30, 2017, the McClatchy DC Bureau reported that the Trump Administration was seeking to restrict H-1B visa extensions beyond the six-year limitation through a re-interpretation of the AC21 rules. After an apparent realization that such a move was ill-conceived, subject to strong reactions from the business community, and would be hung up in court, on January 8, 2018, USCIS stated that it was not considering such a regulatory change and denied that it ever was.

While USCIS no longer appears to be going through with this plan, we thought it important to understand what if any potential impact there might have been and to also highlight how hasty immigration pronouncements by this Administration evidence a fundamental lack of understanding and appreciation for our current immigration laws.

H-1B status is temporary and is granted for a maximum of six years. If a U.S. employer sponsors the H-1B Beneficiary for a Green Card during that time period, the foreign worker can remain in the U.S. beyond the sixth-year limitation pursuant to the American Competitiveness in the Twenty-First Century Act (AC21). AC21 sought to retain foreign talent who had already worked in the U.S. for several years, rather than losing that talent to the global marketplace.

Section 106(a) of AC21 mandates that an H-1B beneficiary is notsubject to the sixth-year limitation if a labor certification application (“PERM”) has been filed 365 days before the sixth-year limitation has been reached, and such H-1B beneficiary shall be granted extensions in one-year increments until a decision is made on the Green Card.

Section 104(c) of AC21 extends H-1B status in 3-year intervals beyond the sixth-year limitation if the H-1B holder is the beneficiary of an approved I-140. It is this section that the McClatchy article suggests that the Administration was seeking to limit. While in theory this section provides for “discretionary” extension grants, in practice, since AC21 was enacted, USCIS has routinely granted the extension requests. Thus, if the Trump Administration was to pursue a new world order with respect to these extensions it could not arbitrarily do so, even if it has discretion to do so.

The proposal to restrict H-1B visa extensions was altogether ill conceived, since most individuals who qualify for the “discretionary” 3-year extension under Section 104(c) would already qualify for the mandatory 1-year extension under Section 106(a). Thus, it begs the question as to what this policy would have achieved beyond simply putting up arbitrary hurdles that can be knocked down by application of Section 106(a), and would likely lead to court battles on abuse of discretion in implementing Section 104(c).

Unfortunately, we believe these hasty policy and procedural moves by the executive branch just further evidence a desire to curtail all immigration – both lawful and unlawful.