Tuesday, January 9, 2018

TRUMP BACKS DOWN ON AN H-1B THREAT TO 6+ YEAR H-1Bs

McClatchy reports that the Trump Administration has backed down from a threat that would have eliminated the ability of H-1B workers with long-pending green card cases to extend their H-1B status beyond 6 years.  They had previously reported that the Trump Administration was considering the change to H-1B extensions.

In a recent MU Law blog, we outlined the reasons that such a policy change was contrary to law.  We explained that The Trump Administration would have lost if challenged in court.  While Section 104 of AC21 might provide arguable cover for a Trump policy change, Section 106 of AC21 could not have been changed.  Therefore any policy change to Section 104 would have simply resulted in USCIS granting H-1B extensions in one-year increments under Section 106.

McClatchy quotes an unnamed USCIS official who confirms our analysis and the analysis of many members of the business immigration bar:

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”

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