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Could new regulations eliminate H-1B extensions after the six year limit?

By Rahul Reddy & Paloma Feghali Attorney’s at Law 

This past weekend, word spread that the Trump administration is reviewing a proposal that could impact H1B extensions beyond the six-year limitation. This has sparked great concern and has left many worried that thousands of Indians could be sent back to India.

If any changes were to happen, they would need to be permissible under AC-21, which provides two important exemptions from the six-year limit for H1B holders. The language shows that while some of AC-21 is open to interpretation, other parts would be difficult for the Trump Administration to bypass.

  • Section 104(c) provides that the beneficiary of an I-140 – Employment-Based Immigrant Petition – who is eligible to be granted a green card but for the application of the per country limitations,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.
  • Section 106(a) states that the 6-year limitation “shall not apply” to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant H-1B status on whose behalf a petition has been filed if 365 days or more have elapsed since:
  1. the filing of a labor certification application on the alien’s behalf, or
  2. the filing of the I-140 Immigrant Petition.

Further, AC-21 provides that “[t]he 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.”

The use of the word “may” in Section 104(c) and the word “shall” in Section 106(a) are key in interpreting whether these exemptions are mandatory. The Trump administration could arguably interpret the word “may” in Section 104(c) to say that H-1B extensions under 104(c) are discretionary and the Attorney General can decide whether or not to grant them. However, any changes in interpretation would need to go through the regulatory process, and no regulations have been proposed at this time. President Trump cannot unilaterally change this law.

Furthermore, the use of the word “shall” in Section 106(a) provides safeguards, even if this regulation was proposed and succeeded through the regulatory process.  The language in 106(a) states that a beneficiary is entitled to one-year extensions if a labor certification or I-140 is filed prior to the six-year limit. In other words, even if the administration were to do away with the three-year extensions beyond the six-year limit, the one-year extension rule would still be retained.

After taking a look at the language of AC-21, it appears that the change would not be as drastic as anticipated since the one-year extension rule would be retained. In the meantime, please be aware that you are still eligible to receive extensions beyond the six-year limit based on both exemptions.