Potential Changes to H-1B Extensions Beyond Six-Year Limit Potential Changes to H-1B Extensions Beyond Six-Year Limit

Potential Changes to H-1B Extensions Beyond Six-Year Limit

NOTE: USCIS has now announced it is NOT considering a regulatory change to H-1B extensions at this time. The agency, however, has noted its intention to continue to review all employment-based visa programs and is considering a number of policy and regulatory changes consistent with the President’s Buy American, Hire American Executive Order.

Happy New Year! Consistent with the eventful start to 2017, the Department of Homeland Security (DHS) is reportedly considering a change to the temporary H-1B visa program as a part of the President's Executive Order "Buy American, Hire American." As you may know, the H-1B visa category limits periods of stay in the U.S. to a maximum of six years. For H-1B workers who reach one or more milestones in the green card process, additional time beyond this normal six-year limit is available. This access to additional H-1B time was created by the American Competitiveness in the Twenty-First Century Act (AC21), a law enacted by Congress in 2000 in recognition of the significant delays created by the numerical limits on employment-based green card applications. Due to these backlogs, many green card applicants routinely wait more than 10 years for green card approval. Simply stated, AC21 allows H-1B workers to maintain lawful immigration status and continue working for their sponsoring employers while awaiting green card approval.
 
The new internal memo contemplates a reinterpretation of the AC21 statute to possibly eliminate certain H-1B extensions beyond the six-year limit. This would dramatically disrupt the H-1B visa program and employers' short- and long-term sponsorship of these critical foreign workers. Importantly, this is merely an internal memo under consideration by the agency and such a significant change in policy would likely require compliance with formal rulemaking procedures, including a public notice and comment period, and/or would trigger immediate litigation on behalf of affected employers and employees.
 
We will continue to closely monitor the situation, and as always, please contact Jenifer Brown, Christl Glier, Kristin Kelley or a member of our Immigration Team with any questions.
 
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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