Can USCIS Limit Post-6 Year Extensions of H-1B?

There have been some recent media reports, indicating that the USCIS is considering measures to limit post-6 year extensions of H-1B status in the United States. I tend to think that there is little the USCIS can do to limit these extensions, since they are the creation of Congressional statute or law, and cannot be repealed, except by Congress.

Basic H-1B law provides that workers are only eligible for 6 years of H-1B presence in the United States, after which they must depart the U.S. for one-year, before they can again become eligible for a new 6-year period. There are two exceptions to the 6-year limit:

Section 104(c) of the American Competitiveness in the 21st Century Act (AC21), provides that an H-1B "may" request an extension, and the Attorney General (now succeeded by the USCIS) "may" extend H-1B status beyond 6-years, if the H-1B is the beneficiary of an approved I-140 petition, and would otherwisse be able to adjust status to permanent residence, except for the non-availability of a visa, due to per-country limitations. (This is common of many India-born persons who have an approved I-140 in the second and third employment based categories).

Section 106(a) of AC21, states that an H-1B "shall" not be subject to the 6-year limitation, and the Attorney General (USCIS) "shall" extend the status of an H-1B worker, if an application for alien labor certification or I-140 petition has been pending for more than 365 days.

These provisions are vital to the continuation of status for many essential H-1B workers in the U.S. economy. In our rural state, many college professors, medical college faculty, public school teachers and high-technology workers are India and China-born persons, who are stuck in long visa-queues, waiting up to 10 years for the availability of a green card. It makes absolutely no sense to drive these people out of the United States, after the government has determined that their services are either in the national interest of the U.S., or that their skills are in short supply.

Ultimately, there may be little the Trump Adminstration can do to limit these post-6 year extensions of H-1B status. AC21 Sec. 106(a) clearly provides that H-1B employees who have green cards pending for more than 365 days, are not subject to the 6-year limit. Under AC21 Sec.104(c), those who are backlogged due to per-country over subscription, "may" apply for an extension and USCIS "may" grant an extension. USCIS may issue some guidance to exminers, stating that they have discretion to deny applications under this section, but it is unknown what criteria may be provided for exercise of discretion. In any event, exercise of such guidance cannot be unreasonable, and USCIS knows that they can expect much litigation, if they attempt to unreasonably limit this very valuable process.

Our firm will closely monitor any developments in this area and will report of any expected signficant changes.