In a new attempt to further the “Buy American, Hire American” policy initiative, the Trump administration appears to be considering new regulations that would limit the ability of H-1B workers with long-pending green card applications to extend H-1B status beyond the usual six-year limit.
Here’s my takeaway: unlimited one-year extensions are not presently in danger, but the executive branch may try to modify regulations to eliminate three-year extensions.
The current American Competitiveness in the Twenty-First Century Act (AC21) has two provisions which allow unlimited H-1B extensions to workers who have reached the six-year limit but have a green card application in process. AC21 is a statute passed by Congress which the executive branch has no power to change. They can, however, change how they interpret and implement the law (more on this in a previous post). The two extension provisions are:
- Section 104(c), which states that the government “may” grant three-year extensions to an H-1B worker with an approved I-140.
- Section 106(a), which states that the government “shall” issue one-year extensions to an H-1B worker once 365 days or more have passed since a PERM labor certification application or an I-140 petition was filed on his or her behalf.
“Shall” is a very strong legal word. Because AC21 states that the government “shall” grant extensions to applicants with an I-140 or PERM application filed more than 365 days prior, the executive branch must grant these extensions.
The wording in section 104(c), however, is more ambiguous. It simply states that the government “may” grant extensions. This leaves room for the executive branch to claim that they have the discretion to grant extensions under this section or not. They “may” grant the extensions, or they may not.
For Indian and Chinese nationals waiting 5-10 years for their priority dates to become current, having to submit an H1B renewal application every year as opposed to every three years will certainly be a frustrating and burdensome change, but it does provide the means necessary to remain in the US indefinitely until the green card is granted.
This is not going to happen overnight. If the executive branch wants to change the regulations, they will have to go through the formal “notice and comment” process to allow for public input, and this takes several months. We will keep you posted!
If you have general questions on this topic, please leave a comment on this post and I will try to respond. Please note that I cannot respond to questions regarding the specific facts of your case on this blog. For specific case questions, please schedule a consultation.