Possible Changes to H-1B Extension Processing

The Department of Homeland Security (DHS) may stop renewing H-1B extensions for applicants caught in the green card backlog. Past practices have generally resulted in any applicant whose green card application was negatively affected by backlogs or per-country limits having their H-1B status renewed when the applicant is otherwise eligible.

The DHS may now begin applying a different policy, which could result in impacts to employees/applicants falling into this classification. Note that no formal announcements have been made, and that it is not clear whether there is consensus within the administration to modify policy.

Please read below for more details provided by our service partner, Berry Appleman & Leiden LLP (balglobal.com). We will continue to keep you informed of any updates.

REPORTS OF CHANGES TO H-1B EXTENSIONS IN 2018

The Department of Homeland Security may stop renewing H-1B extensions for individuals caught in the green card backlog, according to a McClatchy DC news bureau report on Saturday.

Currently, under the American Competitiveness in the 21st Century Act (AC21), DHS may grant an extension of H-1B status to an individual who is the beneficiary of a Form I-140 immigrant petition but who is unable to adjust status due to per-country limits. Since AC21 was passed in 2002, DHS has always approved H-1B extensions in this situation where a beneficiary is otherwise eligible for H-1B status.

McClatchy DC reports that DHS may now begin to apply a different policy on the basis that the statute is discretionary and that DHS may, but is not required to, approve an H-1B extension when the beneficiary is caught in the green card backlog due to per-country limits.

Where things stand:

• DHS has made no formal announcement regarding a change in policy for H-1B extensions under AC21.
• A bright-line rule that DHS will not approve any H-1B extension for an individual caught in the per-country green card backlog would likely require rulemaking under the Administrative Procedure Act and would almost certainly be subject to litigation.

Will this happen?
While some political appointees may be advocating for a policy that forces H-1B workers to “self-deport,” it is not yet known whether there is a consensus within the administration to make that policy change. Traditionally, both Republicans and Democrats have supported relief for H-1B workers caught in the green card backlog, but some appointees in the Trump administration are focused on reducing the total number of H-1B workers in the U.S. workforce and may see this policy change as a means of attaining that goal.

BAL Analysis: The latest leak out of the Trump administration is a reminder that U.S. immigration policy will continue to be unpredictable in 2018 and that companies should develop global immigration policies and options to protect their workforce interests. H.R. 392 (Fairness for High-Skilled Immigrants Act), a bill that would reduce the green card backlog by phasing out the per-country limits, has more than 300 cosponsors in the House of Representatives. Though there is no clear path for that legislation to move in Congress, it is a reminder that there is strong, bipartisan support to address the long wait times experienced by many H-1B workers in the U.S.