H1B self deportation – The H1B extension latest news is not True, yet.

H1B self deportation
H1B self deportation

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.

There are two regulatory changes we can expect in coming months. They are

  1. Changes to the H-1B lottery process by using an electronic registration. Expected on February 2018. 
  2. 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. 

13 Comments on "H1B self deportation – The H1B extension latest news is not True, yet."

  1. nice article

  2. Thanks for this article, so many rumor mongers are spreading panic for no reason.

  3. Thank you. Other media channels created panic without verifying the actula facts

  4. Good Analysis by you and Murthy Lawyer website shows you truly care.Especially Indian newspapers show it as the main headline past few days even long discussion on TV when there are several burning issues in country, maybe they enjoy people in stress or for their ratings

  5. Thank You for clarification

  6. Very Positive news at of this year.

  7. Nice summary ..thanks for telling facts

  8. Trump admin is going to do something which can effect to H1B holders waiting for green cards, because he cannot face next elections

  9. kudos to you guys for giving the right news without creating sensationalism like the every other media source…

  10. I have not seen this anywhere in USA media. Not sure where times of india or hindu and other regional media got this from. These media guys appear to just want to create a panic and make ratings out of it. What a shame

  11. Thanks for providing Clear explanation

  12. Awesome and well written post.

  13. check title of section 106(a). Law is not clear here. Eveift your argument holds you will have to renew h1 each year

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