By Donald Parker and Grant Godfrey
On December 30, 2017, the McClatchy DC Bureau news service reported that according to two sources in the Trump Administration, the Administration is investigating whether it can limit the current rules which allow post-6th year H-1B extensions for foreign nationals with pending applications for U.S. Permanent Resident (“Green Card”) status.
Under current law, a foreign national’s H-1B status can be extended beyond the normal 6-year maximum if either (i) a Labor Certification Application or an I-140 Immigrant Visa Petition was filed more than 365 days prior to the 6-year maximum and has either been approved or remains pending — in which case the foreign national’s H-1B status can be extended in 1-year increments until they receive their Green Card (the “1-Year Extension”), or (ii) an I-140 Immigrant Visa Petition was approved before the 6-year maximum is reached and the foreign national is subject to a backlog in the availability of Green Cards within the employment-based Green Card category for which they are being sponsored — in which case the foreign national’s H-1B status can be extended in 3-year increments until they receive their Green Card (the “3-Year Extension”). These provisions were part of the American Competitiveness in the Twenty-First Century Act enacted by Congress and signed into law in 2000.
According to the sources, the Trump Administration, in furtherance of its “Buy American, Hire American” mandate, is exploring whether these extension rules can be eliminated or amended, without passing new legislation. The sources specifically noted that the statutory language of the 3-Year Extension provides that USCIS “may grant” the extension. This suggests that the 3-Year Extension is at the discretion of the USCIS, which means that that the USCIS could promulgate a regulation that restricted or eliminated this extension. Similar language is not part of the 1-Year Extension. We believe that the proposed change is not a correct reading of the statutory language and we also note that how or even whether the Administration would seek to undo or limit these post 6th-year extension provisions is entirely conjectural at this point.
That being said, the impact of such a change, were it to happen, would be significant. Green Cards are made available in a limited number each year and are also subject to per-country percentage limitations. As a result, there are significant backlogs in the availability of employment-based Green Cards for the nationals of a number of countries including India and mainland China. For Indian nationals in particular, these backlogs are far in excess of the normal 6-year maximum for H-1B status. There are likely several hundred thousand foreign nationals with approved I-140 Immigrant Visa Petitions who could be affected by a change to the post 6th year H-1B extension rules. Without the ability to continue to extend their H-1B status beyond the 6-year limit, these employees of U.S. companies would likely have to leave the United States for at least a year and then be subjected to the H-1B cap before they could return.
While this would be catastrophic for both foreign nationals and their U.S. employers, it is important to remember that these are still early days. First, this is a rumor at this point and there has been no formal articulation by the Administration of a proposal or a process — just that they are investigating the issue. Second, if the Administration proposes to change these rules by regulation, the regulatory process will take many months and will likely be delayed and may even be stopped by legal challenges in Federal court. Third, if the Administration determines, or the courts require, that changes to these rules can only be made by legislation, there is little likelihood that the Administration can get legislation passed through Congress on any immigration issue — particularly one as volatile as this — in the present political climate.
Please contact Don Parker or Grant Godfrey to discuss your business immigration concerns.