By citing unnamed sources McClatchy DC reports that the Department of Homeland Security (DHS) weighs major change to H-1B foreign tech worker visa program. DHS is considering new regulations that would prevent H-1B visa extensions, according to two U.S. sources briefed on the proposal. The measure potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending. The proposal, being drafted in memos shared between DHS department heads, is part of President Donald Trump’s “Buy American, Hire American” initiative promised during the 2016 campaign.
Skilled workers and employers should NOT be alarmed by the news report because an executive order or rule adopted by the government cannot re-write a Congressional Act. Executive order can regulate activities within purview of Executive Branch under the constitution, and it could adopt rules based on legal authority from particular Congressional Act(s). The H-1B extensions beyond six years are based on specific Congressional Act, Pub. L. 106-313 American Competitiveness in the Twenty-first Century Act of 2000_(“AC 21”), therefore, it is very unlikely that the government will seek to pursue such an executive action or a rule making as reported by McClatchy DC. Even if the government adopts such a regulation, it still has to pass the muster under the constitution and applicable statutes. It is also likely that such a regulation or executive action may be challenged at the court of law.
It should be also noted that the Congress has the exclusive constitutional authority to regulate U.S. immigration, the executive branch enforces the immigration laws passed by Congress.
Under the Immigration and Nationality Act (INA), there are several provisions which state “Attorney General (now Secretary of DHS pursuant to Homeland Security Act of 2002) may”. This basically means DHS makes a decision on case by case basis and it does not mean that the DHS has the discretion and it could deny the extensions without lawful grounds. For the purpose of extensions beyond 7th years, the Section 104(c) of AC 21 is applicable which states:
“(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)
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.”
The above statutory provisions means that such an immigrant “may apply” for an extension, therefore, Attorney General too “may grant” such an extension until the alien’s application for adjustment of status has been processed and a decision made thereon. In other words if the alien chooses to apply for an extension then the Attorney General may grant an extension if the following elements are met:
- the alien is the beneficiary of a petition filed under Section 204(a) of INA (EB1, EB2 or EB3);
- the alien is eligible to be granted that status (i.e. employment-based EB1, EB2 or Eb3 immigrant status) but for per country limitation. (eligibility to apply for immigration visa is based on priority date as published in the Visa Bulletin)
This means the alien has to affirmatively prove above facts with documentary evidence, therefore, the extension is not automatic and the Attorney General will still examine those evidence to ascertain that the alien meets the criteria for extension under AC 21. Therefore, H-1B petitioners often submit copy of I-140 approval notice, copy of passport, and the latest visa bulletin for the H-B extensions based on Section 104(c) of AC21.
While the executive branch may be able to cause some temporary disruption, it cannot adopt executive actions or rules that contravene the statutes promulgated by the legislative branch. Therefore, while employers using the H-1B visa should continue to watch for potential changes to immigration laws, they should not be concerned that their current H-1B employees will be denied extensions beyond 6 years.
For learning more about this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at firstname.lastname@example.org instead of falling for unsubstantiated news reports.