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DHS Considering Elimination of H-1B Extensions for Individuals Waiting for Green Card, Other Changes to H-1B

January 4, 2018

According to the McClatchy DC Bureau, the Department of Homeland Security (DHS) is considering new regulations to eliminate the ability of H-1B employees to obtain extensions beyond the normal 6 years.  Following the American Competitiveness in the 21^st Century Act (AC21) employers have been able to request extensions for H-1B employees who are beyond a certain point in the green card process (and are delayed due to the per country priority date backlogs). 

Because AC21 indicates that DHS “may” grant extensions, the administration is weighing whether they may change the policy in its discretion.  This is part of the review of the H-1B program directed by the Buy American, Hire American (BAHA) executive order.

Weaver Schlenger LLP believes that changing the law will require DHS to follow the rulemaking process as dictated by the Administrative Procedures Act (APA) and therefore will take several months at minimum to implement.  Any attempt to change the law without following the APA will definitely be subject to litigation.

Other changes which the DHS is preparing to propose include:

• Creating a pre-registration process for employers seeking to file fiscal year H-1B petitions (likely to be published in Federal Register in February, taking several months to take effect, so not applicable to this year’s fiscal year H-1B filings)

• Redefining “specialty occupation” to promote goal of reserving H-1Bs for the “best and brightest” and redefining employer-employee relationship to better protect U.S workers and wages (likely to be published in Federal Register in October 2018)

The DHS has also indicated it plans to eliminate the H-4 EAD program in 2018 (likely to be published in the Federal Register in February, taking effect several months later). 

We will continue to monitor all developments and report on significant updates here, including the anticipated timing of changes as they become concrete.  Like 2017, this new year is likely to continue to be unpredictable in the business immigration world.