Department of Homeland Security Considers Policy Change That Would Prevent H-1B Extensions

Recent news reports have indicated that the Department of Homeland Security (DHS) is considering a major policy change that would prevent H-1B visa extensions for foreign workers who are waiting for green cards due to per-country limits.

Under current immigration regulations, individuals are eligible for a maximum six-year period of H-1B status.  However, under the American Competitiveness in the 21st Century Act (AC21), DHS may grant an extension of H-1B status to an individual who is the beneficiary of a PERM application or Form I-140 immigrant petition, but who is unable to adjust status due to per country limits on immigrant visas (which includes many nationals of India and China). Since the AC21 law was passed in 2002, DHS has generally approved these types of H-1B extensions where a beneficiary is otherwise eligible for H-1B status. This regulation allows foreign workers who may have to wait decades before they are able to obtain their green card, to continue working in the U.S. in valid H-1B status until they are eligible to adjust status to that of a permanent resident. The proposed re-interpretation of AC21 would eliminate this H-1B extension option for these individuals, after they have maxed out their six years of H-1B time in the U.S., and would result in a potential “self- deportation” of hundreds of thousands of H-1B workers who currently live and work in the U.S.

The elimination of this H-1B extension option is in furtherance of the President’s “Buy American, Hire American Executive Order,” which calls for the agency to conduct a thorough review of employment-based visa programs and implement changes “to protect the interests of United States workers.”

To date, there has been no formal announcement or policy memorandum issued by DHS verifying the implementation of this change to the interpretation of AC21. Any proposal to change the AC21 regulation itself would need to undergo the necessary rulemaking process, including notice to the public and a comment period.

In light of the unpredictability to immigration policies under the current Administration, the immigration attorneys recommend that employers be prepared with alternative options in case these policy changes could impact their foreign national employees. Please contact our office if you have any questions regarding how this policy change could impact your foreign national workforce.