In what would be a direct attack
against Indian H-1B workers, McClatchy
reports that the Trump administration is considering an Executive Order or Memorandum
that would eliminate the ability of H-1B workers with long-pending green card
cases to extend their H-1B status beyond 6 years. For the reasons outlined in this blog, MU Law
believes that while the Trump Administration may attempt this change in
interpretation, they would be unsuccessful once challenged in court.
Background
In the 1990s H-1B status was
limited to 6 years. After 6 years the H-1B
worker had to exit the US, even if the H-1B worker's green card application was being delayed for reasons outside of their control, i.e. retrogression or
processing delayed at INS (the predecessor to the USCIS). Congress recognized this problem and solved
it with the American Competitiveness in the 21st Century Act
(AC21).
AC21 includes two provisions that allow
H-1B extensions beyond 6 years. These provisions, Sections 104 and 106, are only available to H-1B workers who have started the
green card process.
The sole purpose of these two provisions is to allow H-1B workers to extend their H-1B beyond 6 years.
Section 104 says that the Attorney
General (now Secretary of the Department of Homeland Security) “may” extend an
H-1B worker’s status beyond 6 years if the H-1B worker is the Beneficiary of an
I-140 petition. The USCIS can approve
these extensions in increments of no more than 3 years.
The other important provision, Section
106, says that the USCIS “shall” issue one-year H-1B extensions to H-1B workers
who are either:
(1)
the Beneficiary of a PERM application that was
filed more than 1 year earlier; or
(2)
the Beneficiary of an I-140 petition that was
filed more than 1 year earlier.
Again, the entire purpose of
Sections 104 and 106 is to allow H-1B workers to extend their H-1B beyond 6
years.
Current Regulations
In January 2017, the USCIS released regulations further clarifying the applicability of Section 106. These regulations clearly state that there are only four ways that the USCIS may not extend a 6+ year H-1B. None of the four exception criteria will apply to any H-1B holder with an approved I-140.
(2) H-1B [extensions beyond 6 years] may be granted in up to 1-year increments until either the approved permanent labor certification expires or a final decision has been made to:
(i) Deny the application for permanent labor certification, or, if approved, to revoke or invalidate such approval;
(ii) Deny the immigrant visa petition, or, if approved, revoke such approval;
(iii) Deny or approve the alien's application for an immigrant visa or application to adjust status to lawful permanent residence; or
(iv) Administratively or otherwise close the application for permanent labor certification, immigrant visa petition, or application to adjust status.
Mistaken Interpretation of Sections 104 and 106
The McClatchy article and several
other blogs and news stories point to the “may” language in Section 104. Their interpretation is that the “may”
language gives the DHS Secretary unqualified discretion to deny 6+ year
H-1Bs.
While MU Law believes that this is a
wrong interpretation of Section 104, and we will explain why in a future blog
post, it is irrelevant because Section 106 provides no such discretion to the
DHS Secretary.
Simply put, under Section 106 the
USCIS “shall” issue on-year H-1B extensions.
Some have mistakenly interpreted AC21.
The mistaken interpretation says that Section
106 does not apply if H-1B workers have an approved I-140. This interpretation is wrong. There is no qualifying clause that compels USCIS
to only adjudicate green card petitions under Section 104.
Some have pointed to the "surplusage canon"
for the authority that Section 104 supersedes Section 106 when an H-1B worker
has an approved I-140. The surplusage
canon is a doctrine of statutory interpretation that says that if one clause in
a state makes the other redundant, courts should use a reading to eliminate the
redundancy.
This interpretation is wrong for several
reasons, but the primary one is that an interpretation where Section 104 supersedes 106, makes Section 106 essential.
In other words, Beneficiaries have two ways to
qualify: either Section 104 or Section 106. There is no "surplusage".
Conclusion
MU Law wants to be clear. There is risk here. The Trump Administration has proven to be willing
to issue unlawful executive orders. They
may attempt to issue an unlawful executive order in this instance.
Having said that, a federal court
challenge would almost surely be successful because of the alternative nature
of Sections 104 and 106.
Latest news: highly-regarded immigration
attorney Greg Siskind
has just reported on Twitter that he believes that the Trump administration
is only considering changing their interpretation of Section 104. Section 106 appears to be outside the scope
of the Trump Administration’s considered review.
