In what would be a direct attackagainst Indian H-1B workers, McClatchyreports that the Trump administration is considering an Executive Order or Memorandumthat would eliminate the ability of H-1B workers with long-pending green cardcases to extend their H-1B status beyond 6 years. For the reasons outlined in this blog, MU Lawbelieves that while the Trump Administration may attempt this change ininterpretation, they would be unsuccessful once challenged in court.
Background
In the 1990s H-1B status waslimited to 6 years. After 6 years the H-1Bworker 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 orprocessing delayed at INS (the predecessor to the USCIS). Congress recognized this problem and solvedit with the American Competitiveness in the 21st Century Act(AC21).
AC21 includes two provisions that allowH-1B extensions beyond 6 years. These provisions, Sections 104 and 106, are only available to H-1B workers who have started thegreen 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 AttorneyGeneral (now Secretary of the Department of Homeland Security) “may” extend anH-1B worker’s status beyond 6 years if the H-1B worker is the Beneficiary of anI-140 petition. The USCIS can approvethese extensions in increments of no more than 3 years.
The other important provision, Section106, says that the USCIS “shall” issue one-year H-1B extensions to H-1B workerswho are either:
(1) the Beneficiary of a PERM application that wasfiled more than 1 year earlier; or
(2) the Beneficiary of an I-140 petition that wasfiled more than 1 year earlier.
Again, the entire purpose ofSections 104 and 106 is to allow H-1B workers to extend their H-1B beyond 6years.
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 severalother 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+ yearH-1Bs.
While MU Law believes that this is awrong interpretation of Section 104, and we will explain why in a future blogpost, it is irrelevant because Section 106 provides no such discretion to theDHS Secretary.
Simply put, under Section 106 theUSCIS “shall” issue on-year H-1B extensions.
Some have mistakenly interpreted AC21. The mistaken interpretation says that Section106 does not apply if H-1B workers have an approved I-140. This interpretation is wrong. There is no qualifying clause that compels USCISto 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 workerhas an approved I-140. The surplusagecanon is a doctrine of statutory interpretation that says that if one clause ina state makes the other redundant, courts should use a reading to eliminate theredundancy.
This interpretation is wrong for severalreasons, but the primary one is that an interpretation where Section 104 supersedes 106, makes Section 106 essential.
In other words, Beneficiaries have two ways toqualify: 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 willingto issue unlawful executive orders. Theymay attempt to issue an unlawful executive order in this instance.
Having said that, a federal courtchallenge would almost surely be successful because of the alternative natureof Sections 104 and 106.
Latest news: highly-regarded immigrationattorney Greg Siskindhas just reported on Twitter that he believes that the Trump administrationis only considering changing their interpretation of Section 104. Section 106 appears to be outside the scopeof the Trump Administration’s considered review.
