The Department of Homeland Security Considers the Trump Administration’s Proposed Changes to H-1B Visa Extension

The Department of Homeland Security Considers the Trump Administration’s Proposed Changes to H-1B Visa Extension

The Department of Homeland Security is considering a new regulation eliminating H-1B visa extensions beyond the current 6-year limit pending permanent labor certification for 365 days or approved I-140 petitions. Included are I-485 Applications to Register Permanent Residence or Adjustment of Status under the American Competitiveness in the 21st Century Act. The current law allows foreign guest workers one three-year extension of the H-1B visa of three-year validity. At the end of those six years, a guest worker with a an I-140 approval or a pending Green Card application has an almost indefinite extension of their H-1B until such applicant’s Green Card application has been processed. The proposed measure is a part of President Donald Trump’s “Buy American, Hire American” initiative promised during his 2016 campaign. It is important to note however that the proposal is in mere discussions and is in no means close to any approval stage.

According to one of the sources revealing the proposed changes in H-1B extensions, “The idea is to create a sort of ‘self-deportation’ of hundreds of thousands of tech workers in the United States to open up those jobs for Americans.”[1] The proposed change if passed would have a dramatic effect on all of the green card applicants. McClatchy, a Washington D.C. news service explained “Lawyers who represent the workers and companies expect lawsuits to be filed if changes to the program were sought without Congressional Approval”

The usual process regarding the passage of this new regulation requires U.S. Congress’s approval. The Trump Administration is currently looking at whether it can use a potential loophole by reinterpreting the “may grant” language of the American Competitiveness in the 21st Century Act to stop making extensions. The American Competitiveness in the 21st Century Act currently allows the administration to extend the H-1B visas for thousands of immigrants beyond the allowed two 3-year terms if a green card is pending.

As the matter is still in development, there is not much material. What we can do is estimate the effect of the proposal should it pass without Congressional approval. Recently as part of President Trump’s initiative to overhaul the H-1B program including changes to the definition of “specialty occupation,” H-1B cap lottery reform, and the redefinition of employer-employee relationship suggests these changes are a part of a group of changes which will likely not be achieved in 2018. The Trump Administration still faces another hurdle, and that any rule foregoing the usual legislative process requiring Congressional approval will be challenged in federal courts. McClatchy wrote in their article surrounding this topic “Lawyers who represent workers and companies expect lawsuits to be filed if changes to the program were sought without Congressional approval.[2] In this respect, employers of H-1B workers may be able to get temporary restraining orders or a preliminary injunction to stop the enforcement of such rules.

The proposed changes would have a draconian effect on H-1B visa holders. Foreign workers who apply for PERM certification or I-140 approvals will still keep their eligibility for application of permanent residence in the future. In this respect, they will be allowed to provide the required services for employers “off-shore.” Although the Trump Administration aims at improving the rate of American workers obtaining jobs, this proposed change to the H-1B system can result in a significant outsourcing of jobs contradictory to the intent of the change. According to the Times of India, tech savants warn that the effect of the passage of such proposals can result in workers staying home and starting their very own Facebooks and Ubers, something U.S. tech experts have warned is already starting in China. [3]Waiting in the wings as well is the November 2018 Midterm National Election which could very well change the political landscape resulting in a changing of the banners from conservative to progressive which could also affect how the proposed changes are passed or not.