Immigration Fact and Fiction for the U.S. Employer: H-1 Extensions for Applicants for Permanent Residence are Alive and Well

by Proskauer - Law and the Workplace
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Proskauer - Law and the Workplace

I guess it is not a surprise, there was another information leak. This time the leak was from USCIS, perhaps an accident or perhaps not.  Is is true or is it fake news that a regulation would be proposed limiting, at least in part, H-1B extensions beyond the normal 6-year limitation for individuals who have applied for permanent residence.

Even floating this idea has created a tumult and the blowback, if there is any attempt to implement it, would likely be extraordinary.

Pursuant to the American Competitiveness in the 21st Century Act (AC-21), one is eligible, pursuant to Section 104(c) to a three-year H-1B extension beyond the normal six-year maximum period if the applicant has an approved employment-based immigrant visa petition, and is eligible to be granted lawful permanent resident status, but is prevented from doing so because of a lack of visa availability.  The Statute provides that the Service “may grant” such extensions on an ongoing basis until such time as the adjustment of status application has been adjudicated.

Under Section 106(a), one-year extensions of H-1B classification can be obtained, as long as 365 days have passed since the filing of an application for labor certification or of an I-140 petition, initiating a permanent residence case. This section provides that the six-year maximum “shall not apply” and directs the Service “shall extend” the H-1B stay in one-year increments.

It appears that USCIS may believe that it can impose restrictions on renewing the “three-year provision” given that the Statute provides that it “may grant” the extension, but it does not appear that they would have any room to maneuver with reference to the “one-year provision”, which has mandatory language, “shall not apply to” and “shall extend”.

It almost seems as if the purpose of letting this idea escape into the public realm was to create the fear and uncertainty that such a proposal could induce without actually having to implement it.

Rumors such as this discourage individuals from coming into the United States to work, and encourage those already here to leave. Perhaps that was the intention?  A cost-free method of discouraging H-1B workers.

H-1B holders and their employers are already planning in anticipation of a change that might never come by filing H-1B extensions as early as legally possible.

Some are even considering what a temporary relocation out of the United States might imply, given that a return to the United States in H-1B visa classification or L-1 classification would be possible after one year. However, even if the worst were to happen and the three-year provision is somehow restricted, the “one-year provision” would be available to virtually all of these visa applicants who would then be required to renew their H-1B visa classification on a yearly basis.

At first, it puzzled me why USCIS would be considering such an initiative if all it does is impose an additional administrative burden on petitioners without a change in the bottom line result. But then, if the goal or objective is to generate fear and uncertainty and psychologically discourage H-1B applicants or, for that matter, all immigrants and non-immigrants, then it makes sense.  If the goal is to make hiring H-1B workers as onerous and costly as possible – it also makes sense.  Probably all of the above are goals.

Those who are eligible for these AC-21 provisions represent a population that has persevered under the most trying of circumstances. They have sought entry into the United States the right way by following all the rules and properly applying for and renewing their H-1B status while going through the elaborate and challenging process of qualifying as immigrants through Department of Labor certification under the PERM program, and the filing and approval of a petition within which USCIS has vetted the appropriateness of the job offered, the certification issued by the Department of Labor, and the credentials of the applicants.  They have not jumped the line.  They are patiently waiting, many of them for more than a decade until their turn comes under the legal rules imposed upon them.  Others similarly situated who were born in countries other than India and China and followed this same legal path may not only be permanent residents of the United States now, but even citizens.

Many of them have been here so long legally waiting in line, that their children have grown up to be adults already. They are sort of like employment immigration’s DACA kids!

As I have said, they have persevered, and they will continue to persevere. If now they will have to renew H-1B classification yearly, rather than every three years, they will do so, because they are the best examples of a population that still believes in the American dream.

FAQ’S

Q: Is the three-year H-1B extension under AC-21 the only type of extension available for long-time H-1B visa holders with pending applications for permanent residence?

A: No.  Virtually all applicants for permanent residence who qualify for the three-year H-1B extension under Section 104(c) also qualify for the one-year extension under Section 106(a).  Any applicant for permanent residence who has already been granted a three-year extension could easily qualify for the mandatory one-year extension, given that the threshold is an application for permanent residence pending longer than 365 days.

Q: Should a new regulation be passed restricting three-year extensions, would those currently granted be revoked?

A: No.  The Statute provides that the Service “may grant” such extensions and there is no provision for revoking a legally granted extension of stay, once granted, without following normal regulatory procedures for revoking petitions for violation of status.

Q: Should current H-1B visa holders who are beneficiaries of Section 104(c) [the three-year provision] preemptively proceed with one-year extensions going forward?

A: There would seem to be no need to take such a dramatic step since, in all likelihood a regulatory change would be required to modify the current policy, and there would be significant lead time with reference to any change.  Employers and visa holders should carefully monitor the situation and plan the extension and renewal process with an eye on the possibility of a change in USCIS policy.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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