H1B Self Deportation
H1B self deportation is the latest article doing rounds in the media. Published over the weekend, the H1B self deportation article suggests that new regulations would prevent H1B visa holders from obtaining extensions beyond the sixth-year. Is this article true? Is the new administration really proposing to send 500,000 H1B holders back home? Moreover, how insane does that sound? As usual media fueled the story to create panic? Remember USCIS memo- Computer programmers qualify for H1B visas?. As usual, we bring you the real news.
H1B self deportation and The American Competitiveness in the 21st Century Act (AC-21)
Congress passed AC-21 act and President Clinton signed it on October 2000. Two specific laws govern handling H1B extensions beyond the sixth year. First, Section 104(c). This states “Any alien who is the beneficiary of I-140 (employment based petition) is eligible for green card. However, for application of the per country limitations “may apply for, and the Attorney General may grant, an extension of such non immigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon”.
Whatever the rumored internal memo is. It may be pointing to the use of “MAY” and suggest that H1B extension under 104(c) is discretionary. In addition, it may argue that attorney general does not have to grant H1B extension. This in turn creates a scenario called “H1B self deportation”. Meaning, after the sixth year if your green card is under processing your H1B extension may not be necessarily approved.
What is the second section?
There is another section in AC-21, which uses different words to explain how to conduct an extension after six-year limit in one year increments.
Section 106(a) states: The six year limit “shall not apply” to any non immigrant alien previously issued a visa. Or, provided H-1B status on whose behalf a petition was filed, if 365 days or more have elapsed since:
(1) The filing of a labor certification application on the alien’s behalf; or the filing of the I-140 petition. Furthermore, the attorney general shall extended the stay of an alien who qualifies for an exemption under subsection (a). In one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.”
Is H1B self deportation imminent?
First and foremost, in which government website did you read about the rule that you must self deport? As of yesterday the agencies are granting H1B extensions beyond the six year limit based on approved I-140 filed more than a year ago.
Secondly, Who proposed the rule? Where is it? Haven’t we all gone through this a hundred times? Before proposing a regulation, it would appear on the Unified Agenda. Unified Agenda reports on the actions that agencies plan revamp in the future. H-1B self deportation comes under DHS. In addition, DHS already published its Fall 2017 agenda.
- Changes to the H-1B lottery process by using an electronic registration. Expected on February 2018.
- Changes to the definition of specialty occupation and employer-employee relationship. Furthermore, changes to additional wage requirements (expected October 2018).
There is no entry for H1B self deportation in the Unified Agenda to limit H1B extensions. Moreover, if DHS does propose a change, it is done in advance and goes through a notice and comment period. See what happened to H4 EAD. Also, DHS or president cannot change the law that created the exemption from the six year limit. Only Congress can.
The already existing Section 106(a) passed by congress states pretty clearly, that the six year limit does not apply when a labor certification or I-140 petition was filed more than a year ago and the H-1B can be extended one year at a time until a decision is made on the H-1B worker’s permanent residence.
As usual, the media used fear to accomplish click bait without an actual change. Be informed and be ready to reach out to legislators during the comment period if agency does propose an agenda.