Client Advisory: DHS Considering Changes to H-1B Extensions Beyond Six Years
Recent reports indicate that the Department of Homeland Security (“DHS”) is considering limiting the ability of H-1B workers who are in the lawful permanent residence (“green card”) process to obtain extensions of their H-1B time beyond the six-year durational limit. Even though DHS has taken no definitive action to date, the immigration bar is actively preparing a strong court challenge to any change to the law, policy, or regulations that govern H-1B extensions in this context.
As the law currently stands, an H-1B worker who is in the lawful permanent residence process has the ability to extend his or her H-1B status beyond six years, provided the worker has reached a certain milestone in the lawful permanent residence process. This opportunity is particularly important for nationals of countries with immigrant visa backlogs, such as India and China. In summary, the controlling statute states the following:
- DHS may grant an H-1B extension beyond the six-year durational limit to a worker who has an approved Immigrant Visa petition (Form I-140) and who is not yet able to file for adjustment of status (i.e., the last step to the permanent residence process) because a permanent resident visa is not yet available due to per country limits under the U.S. immigration quota system; and
- DHS shall extend the stay of an H-1B worker in one-year increments beyond the six-year durational limit, until a final decision is made on the worker’s lawful permanent residency, when 365 days have passed since the filing of either a labor certification application (Form ETA 9089) or an Immigrant Visa Petition (Form I-140) on behalf of the H-1B worker.
Stemming from President Trump’s “Buy American, Hire American” executive order, DHS is considering whether it can stop approving H-1B extensions beyond the six-year durational limit as outlined above.
It is our opinion that while the agency may attempt to interpret the “may” extension language as discretionary and therefore within its authority to deny, the “shall” extension language in the second category is mandatory. Thus, the current law requires DHS to approve one-year extensions beyond the six-year durational limit for an H-1B worker once 365 days have passed since the filing of either a labor certification application (Form ETA 9089) or an Immigrant Visa Petition (Form I-140) on behalf of that worker. And the current law requires DHS to approve an extension in this situation until a final decision is made on the worker’s lawful permanent residency.
DHS has not issued any formal announcement regarding any possible changes. Moreover, actual changes cannot happen overnight. First, any change to the implementation of the “shall” extension would require Congress to pass a new law that changes that provision.
Second, any attempt to change the regulations implementing the extension provisions would require the publication of a proposed rule, a notice-and-comment period, and approval by Congress. Therefore, any statutory or regulatory change would take months, if not years, given current Congressional gridlock.
Third, Congressional intent for the extension provisions is clear: They allow H-1B workers to remain in the United States working for their employers in lawful status while the lawful permanent residence process is pending. Therefore, any policy change by DHS to deny such H-1B extensions would certainly be subject to litigation. While DHS has discretionary authority in its decision-making, the exercise of such authority cannot be arbitrary and capricious. Given the clear Congressional intent behind the enactment of H-1B extension provisions and the Immigration Service’s own history of granting such extensions, a federal court would likely strike down any implementation of changes made solely by DHS as arbitrary and capricious. Further, if a court found the law to be unclear, the court would most likely defer to the Immigration Service’s own interpretation of the law, which would show that the Immigration Service routinely has processed H-1B extensions under both extension provisions for over fifteen years.
Given all of these factors, while the concern is real and DHS may take action contrary to the law and related regulations, it is highly likely DHS will ultimately fail in any effort to deny H-1B extensions beyond six years for H-1B workers who fit within the statutory extension provisions.
The attorneys at Myers Thompson are actively monitoring developments in this matter and the H-1B visa program overall. We will continue to update our clients as we receive additional information. With questions, please contact us at (612) 349-3030.