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FYI
Frow PearlLawFirm
DHS Evaluates Possibility of Rolling Back AC-21 H-1B Extensions
What happened?
On December 30, 2017, McClatchy reported that the Department of Homeland Security (DHS) is considering regulations to prevent H-1B holders from extending their status past the six-year mark, as now allowed for by the Congressionally-approved AC-21 (American Competiveness in the 21st Century) act.
AC-21 allows H-1B holders who progressed far enough through the green card process to extend their H-1B status until green card backlogs clear. Hundreds of thousands of H-1B holders (mostly from India and China) have been waiting many years for backlogs to clear, and would be forced to leave the U.S. if these regulations are successfully implemented.
Please note that as of now, there is no rule change, and H-1B holders may continue to request extensions under AC-21.
Further, for reasons that we explain below, we think it is highly unlikely that DHS will be allowed to implement regulations that roll back AC-21 extensions..--
.1point3acres
What does this mean?
Under AC-21, there are two ways for H-1B holders to extend their H-1Bs past the statutory six-year period:
Section 106 one-year extensions: This provision states that the Attorney General shall extend the stay in one-year increments of an H-1B holder who has had a PERM application or I-140 petition filed on their behalf at least a year before the extension request.. check 1point3acres for more.
Section 104 three-year extensions: This provision states that an H-1B holder who has an approved I-140 petition and whose immigrant visa number is unavailable due to backlogs in their green card category may apply for extensions in three-year increments, and the Attorney General may grant these requests until an immigrant visa number is available to the H-1B holder.
Reports indicate that DHS, in furtherance of the President's Buy American and Hire American Executive Order, is evaluating whether Section 104's "may grant" language gives them discretion to stop granting extension requests altogether. We believe that DHS themselves or perhaps even a Federal court will ultimately decide that they do not have this authority to do so for the following reasons:
While DHS has the discretion to deny individual requests, it cannot decide to stop granting all requests as that would be facially inconsistent with the clear intent of AC-21, which Congress passed to expressly allow employees to continue working in the U.S. while they wait for long green card backlogs to clear. DHS is under a mandate to issue regulations that implement the will of Congress, not subvert it..1point3acres
Even if DHS feels strongly that it can stop approving three-year extensions requests under section 104, it is still obliged to allow one-year extension requests under section 106 ("the Attorney General shall extend the stay in one-year increments...") So, H-1B holders would just use section 106 instead of section 104.
DHS's purported rationale of rolling back AC-21 extensions to protect American workers from being displaced in the workforce would not withstand judicial scrutiny, as all section 104 extension applicants have already passed the PERM labor market test to be eligible for the extensions in the first place.
The "may grant" language merely follows the "may apply" language in section 104. It was not meant to give DHS discretion to stop granting extensions requests altogether.
For these reasons, we believe that the ability of H-1B holders to seek AC-21 extensions of their H-1B status will remain intact.
We will continue to monitor developments and provide updates as they arise. As always, we welcome you to connect with your Pearl Law Group counsel with any questions or concerns.
我司给我发的,仅供参考哈. 1point 3acres
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