News of a potential change in policy related to the American Competitiveness in the 21stCentury Act (AC21) has begun to spread throughout the legal and immigrant communities. Sources claim that the Trump Administration is considering regulatory changes to the policy regarding H-1B extensions beyond the standard 6-year maximum. There certainly are changes to the AC21 regulations that could be made. However, without Congressional approval, the plain language of the statute makes it unlikely that the Administration could completely eliminate the ability of H-1B workers to extend status beyond six years.
Two Potential Grounds for H1B Extensions Under AC21
AC21 provides two means by which an H-1B worker may extend status beyond six years. First, under AC21 section 104(c):
(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who–
- (1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and
- (2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon.
Thus, an individual may be granted an extension of status in three-year increments based on an approved immigrant petition for alien worker (form I-140) with a non-current priority date. Second, pursuant to AC21 section 106(b):
(b) EXTENSION OF H-1B WORKER STATUS- The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.
Thus, an H-1B worker is expresslyeligible for an extension of H-1B status in one-year increments beyond the six-year maximum, based on a labor certification or I-140 petition filed at least 365 days prior.
Importantly, the statutory language for §104(c) uses the word “may,” providing the U.S. Citizenship and Immigration Services (USCIS) with some discretion as to whether to approve such a request. Historically, the USCIS has not exercised its discretion to deny H-1B extensions filed under §104(c). The Trump Administration, however, potentially could reverse this trend and stop issuing these three-year H-1B extensions. Even then, however, the exercise of discretion by an administrative agency generally requires the use of some objective parameters; blanket denials by the Trump Administration could be challenged in court, particularly given that USCIS policy has been to consistently approve these extensions for more than 17 years.
The Trump Administration likely has far less leeway under §106(b). This AC21 provision states that the government “shall” issue one-year H1B extensions. Therefore, unlike the three-year extension, there is no room for discretion on the part of the government. Further, this immigration benefit continues to apply “… until such time as a final decision is made on the alien’s lawful permanent residence.” Unless the INA is amended by Congress, any attempt by the Administration to alter this provision undoubtedly would result in a rash of federal lawsuits.
Conclusion
While it is troubling that the Administration continues to push for ways to make life more difficult for foreign nationals working in the United States, this nation’s separation of powers helps to check the President’s power to do so. It should also be noted that this supposed attempt to reinterpret AC21 comes from an unconfirmed media report. As of yet, no official statement has been made by the USCIS on this topic, and no formal action has been taken.
Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.