On December 30th, 2017, the media began reporting that the U.S. Department of Homeland Security (“DHS”) was working on changing H-1B laws that permit certain H-1B employees to extend their H-1B status past the six year limit, pursuant to the American Competitiveness in the 21st Century Act (“AC21”). A change of this nature would predominantly impact Indian H-1B employees who wait for years for the possibility of filing for permanent resident status.
This announcement is a continuation of President Trump’s “Buy American, Hire American” agenda, that, since taking office in January 2017, has already dramatically changed the way DHS internally reviews and processes H-1B Petitions. This announcement also follows on the heels of DHS’ proposed regulatory agenda changes to the H-1B program and the H-4 EAD program, that we reported on in December.
This announcement has created a lot of uncertainty for law-abiding Employers and H-1B employees which is why it is important to remember that any type of legal change of this nature requires that DHS go through the required legal process that includes public notice, a comment period, and time for DHS to review and respond to comments received. Only then can DHS possibly make a change the legal landscape to no longer permit certain H-1B employees to extend their H-1B status past the six year limit. Further, another provision of AC21 still provides a legal pathway for H-1B employees to extend H-1B status past the six year limit, in one year increments, when certain legal criteria are met.
Please contact SPS Immigration PLLC should you have questions on your current H-1B status.