UPDATE: According to a new report by McClatchy, Jonathan Withington, chief of media relations for USCIS, said on Monday, January 8, that while the "agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order... 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. 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."
Over the weekend, McClatchy reported news of a proposal that’s being shared among department heads in the Department of Homeland Security (DHS). This proposal could prevent H-1B visa holders who are currently waiting to be awarded green card status from extending their visa while their applications are pending.
Why are some H-1B visa extensions at risk?
Certain H-1B visa holders waiting to be awarded permanent resident status are currently allowed to extend their stays in the US beyond the usual six-year limit. This proposal, another policy update prompted by the 2017 Buy American Hire American executive order, would seek to change that.
Parsing legal language
The DHS discussions reported by McClatchy would reinterpret some language from the American Competitiveness in the Twenty-first Century Act (known as “AC21”), which was enacted into law in 2000.
According to the report, DHS is looking at language in the AC21 regulations which says USCIS “may” allow pending green card applicants to extend their H-1B visa stays beyond the normal 6-year limit. In practice, USCIS has treated this language to mean that H-1B visa extensions should be approved in almost all eligible cases.
The new report says DHS is considering changing the interpretation of “may” to mean USCIS can refuse to allow H-1B holders to continue working in the US while their green card applications are being processed.
The result would be a change in the interpretation of the law rather than a change to the text of the law. But since the wait for green cards can take years or even decades for applicants from some countries, it’s a change that could have serious impacts for those foreign nationals and for the companies that employ them in the US.
It’s not a surprise
The McClatchy report quotes “two U.S. sources briefed on the proposal.” The proposal has not been officially released by DHS, and the department’s spokesperson declined to comment on the story’s claims. However, in the wake of a series of policy shifts, a number of them targeting the H-1B visa program, it doesn’t come as too much of a surprise.
The H-1B program has been under tough scrutiny since the start of the Trump administration, with memos, executive orders and even proposed legislation as proof.
Do you have questions about your H-1B visa holders? Contact Envoy for H-1B help.