Department of Homeland Security Reportedly Considering Changes to 7th Year H-1B Extension Rules
The Department of Homeland Security (DHS) is reportedly considering new regulations that would limit the ability of H-1B workers who are in the lawful permanent residence (LPR) process to obtain an extension of their H-1B status beyond the usual six-year limit of authorized stay. The reported proposal, which arises from President Trump’s “Buy American, Hire American”; executive order, could impact thousands of H-1B workers and their families, many of whom have been waiting in line for a green card for years.
What is the possible/ proposed change?
The American Immigration Lawyers Association (AILA) has issued an excellent summary of the issue and rumored proposed changes.
Why are H-1B extensions beyond the six years needed?
For those unfamiliar with the issue and the process, H-1B extensions beyond the usual 6-year maximum are available to those who are at a late stage of the green card process, but have not been able to complete the process either because of government processing delays, or because an immigrant visa is not available in their category.
Individuals in this situation have maintained lawful status and work authorization, paid taxes, and contributed to their employer’s business for many years. Their employers have supported an employment-based green card process, which in most cases requires a test of the labor market and proving they can’t find a minimally-qualified U.S. worker to do the job (PERM labor certification).
Because the law limits the number of immigrant visas (green cards) which can be issued per year based on category and country of birth, even after obtaining an approved labor certification and immigrant visa petition, many individuals must wait years for an immigrant visa to become available to them. For example, in the employment-based third preference category, for those born in India there are currently visas available for those who began the green card process before November 1, 2006 (yes, that’s a wait of more than eleven years). For Chinese nationals in the employment-based second preference category, there are currently immigrant visas available for those who began the process before August 8, 2013 (more than a 4-year wait).
Prior to 2000, those who ran out of H-1B time while waiting for the green card process to complete had to leave the U.S. and, if the employer and employee could withstand the wait, remain abroad until the permanent residence process was complete, allowing the individual to return to resume the position in the U.S. Recognizing how disruptive this was for business, education, and research, Congress introduced the American Competitiveness in the 21st Century Act, which among other things, introduced the option of H-1B extensions beyond the six years for such individuals.
What are the chances DHS will actually go forward with a proposed rule for elimination of 7th year H-1B extensions?
It is important to note that DHS has not actually issued a proposed regulation or formal announcement. However, we do believe the change is more than rumor, as it is in line with the very clear objective of the current administration to reduce the number of legal foreign workers in the United States.
What would it take for the elimination of 7th year H-1B extensions to take effect?
For DHS to make this change, the agency must issue a proposed regulation and follow the notice and comment procedures, as required by the Administrative Procedures Act (APA). This process could take months. As AILA notes, any policy change before that could be subject to litigation for violation of the APA.
Should the administration go forward with this change, we anticipate class action litigation would follow. We also anticipate major employers to be part of that litigation. Given the potential harm and impact to both employers and employees, it is likely courts would grant a Temporary Restraining Order pending the outcome of litigation. Clearly, the time, cost and stress of litigation is not in anyone’s interest. However, because the impact of this change would be so significant to employers and their business, not to mention the personal lives of employees and their families, we do anticipate litigation to ensue should the administration press this issue.
The American Immigration Council, a non-profit immigration advocacy organization, may initiate a lawsuit on behalf of a class, and/or a lawsuit may result from major employers with standing to sue based on the impact on their business. LAC is prepared to support any such efforts.
As always, should you have any questions or concerns, please do not hesitate to contact your LAC attorney, and we’ll answer to the best of our ability, given the tremendous degree of uncertainty in immigration law at this time.