The American Competitiveness in the Twenty First Century Act of 2000 (AC21) has provisions that extend H-1B visas beyond the 6–year limit for those in the process of becoming US lawful permanent residents. AC21’s Section 106(a) allows H-1B extensions in 1–year increments beyond the 6–year limit if a labor certification, immigrant visa petition (I-140) or employment–based adjustment of status (I-485) application was filed more than 365 days prior to the expiration of the H-1B status. Section 104(c) of the statute allows 3–year extensions for those whose I-140 has been approved and whose priority date precludes the filing of an adjustment of status application.
Yesterday, January 3, the Times of India ran an article entitled: “Trump administration considers proposal that may send back more than 500,000 Indian tech workers.” The article cites rumors that the Department of Homeland Security (DHS) is considering a change in its interpretation of Section 104(c). AC21 Section 104(c) is being used by employers of hundreds of thousands of Indian tech workers, as well as of other nonimmigrant workers caught in the priority date backlog, to extend their lawful stay so that they may continue to work in the US while they wait to file the final set of paperwork in their green card applications. Without the ability to extend their H-1B visas, many could be required to leave…preventing that is the reason Congress passed AC21 into law. Yet, the rumors reported in the Times of India and other news outlets are that the current administration is looking to reinterpret language in Section 104(c) which uses the words “may grant” rather than “shall grant” in order to discontinue the H-1B extensions in support of President Trump’s “Buy American, Hire American” initiative.
The reported rumors have caused a huge stir. Interpretations of AC21, some of which predate USCIS’ existence, have not been codified by regulation, but can’t change by rumor. The interpretation can be formalized, so this is an issue to watch closely. There haven’t been any official government pronouncements that 500,000 Indian tech workers are being sent back home. One has to wonder how doing so would enhance the competitiveness of American employers in the 21st century.
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