FAQs: DHS weighs major change to H-1B foreign tech worker visa program

January 3, 2018 Ian Helms

UPDATE: On January 8, 2018, McClatchy published an update in response to its “DHS weighs major change to H-1B foreign tech worker visa program” article.

According to the new report, Jonathan Withington, chief of media relations for USCIS, said on Monday 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."

We have been receiving outreach surrounding the alleged changes to H-1B visa extensions described in a McClatchy article titled “DHS weighs major change to H-1B foreign tech worker visa program.”

Here are some answers to common questions we’ve received:

Who is impacted by the change to H-1B foreign tech worker visa program?

No one, yet.

The alleged changes 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; however, the alleged proposal has not been released by the Department of Homeland Security (DHS).

The McClatchy report quotes “two U.S. sources briefed on the proposal,” but the department’s spokesperson declined to comment on the story’s claims.

Further, there is no evidence that the change would happen this year, if at all. The result would be a change in the interpretation and enforcement of the law rather than a change to the text of the law, which would require a lengthier process involving congressional approval.

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 U.S.

Should foreign nationals be worried?

Not at this time.

The ability to extend H-1B visas beyond 6 years was created through the American Competitiveness in the 21st Century Act (AC21), which was passed by Congress and signed by President Clinton in 2000.

According to the McClatchy report, DHS is looking at the interpretation of language in AC21.

The regulations say U.S. Customs and Immigration Services (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.

As of now, however, this news is speculative.

When could this happen?

As mentioned earlier, the DHS has not issued a proposed regulation or formal announcement regarding the alleged changes. On January 4, The American Immigration Lawyers Association (AILA) further explained in a Practice Alert:

"For DHS to implement such a change, it would need to issue a proposed regulation and follow the notice and comment rulemaking procedures set forth in the Administrative Procedure Act. That could take months. Any policy change before that could be subject to litigation. Moreover, any final rule could also be subject to litigation."

What about foreign nationals with spouses on H-4 visas?

The removal of H-4 work permits is unrelated to the alleged change to H-1B foreign tech worker visa program. Since 2015, spouses of H-1B visa holders waiting for green cards have been eligible to work in the U.S. on H-4 dependent visas, but no new regulation has been passed or even introduced.

We do not wish to speculate further than the information that has been reported. We will continue to monitor this story closely and provide updates on our immigration blog if and when they occur.

 

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