DHS Considers Restricting Ability of H-1B Workers to Seek Post-Six Year Extensions of Status While They Pursue Employment-Based Immigration Process

H-1B workers have long benefitted from provisions in the American Competitiveness in the 21^st Century Act (also known as the AC21 Act) allowing them to seek extensions of their H-1B status beyond the normal six-year limitation if they are pursuing adjustment of status to lawful permanent residence based on employment.  In particular, AC21 allows H-1B workers to seek 1-year extensions beyond the six years if they are beneficiaries of an application for labor certification or an I-140 that has been pending at least 365 days.  It also allows them to seek 3-year extensions beyond the six years if they are beneficiaries of an approved I-140 but are waiting for their priority date to become current.  Now DHS, in its effort to implement the President’s Buy American, Hire American executive order, is reportedly considering issuing regulations to restrict the ability of H-1B workers to seek extensions of status under these provisions.  In particular, DHS is reportedly considering restricting the ability of H-1B workers with approved I-140s to seek 3-year extensions while they wait for their priority date to become current.  Its basis for this action is the fact that the statutory provision authorizing these extensions says that DHS “may” grant them.  DHS is evidently looking into whether the use of the word “may” means it can interpret this provision to be discretionary rather than mandatory and can thus use its discretionary authority to deny these extensions to H-1B workers even if they meet the statutory requirements for the extension.  The ability of H-1B workers to seek 1-year extensions appears to be unaffected as the statutory provision authorizing 1-year extensions uses the mandatory language “shall” instead of “may.”

DHS’s actions are consistent with the general trend of the current administration to restrict immigration benefits wherever possible.  But it would need to issue proposed regulations that would be subject to public comment before making any changes to its current practices regarding 3-year extensions under AC21, so we will be monitoring the situation for further developments.

For more information on this or other immigration matters, please contact our office at (312) 444-1940 to schedule a consultation.