Trump Administration Rumored to Be Looking at H-1B Extensions Under AC21

Recently, we have seen several news stories discussing a rumored government proposal to eliminate H-1B extensions beyond the standard six-year limit. No such action has yet been taken, and to date H-1B visa holders may continue to request extensions based on the provisions of the American Competitiveness in the Twenty-First Century Act (AC21). Under current law, extensions beyond the initial H-1B period of six years are available to foreign nationals with pending green card petitions. The law that enables beyond-limit extensions, commonly known as AC21, mainly benefits persons born in India and China, who are subject to lengthy green card backlogs.

The proposal has been reported by the press, often with attention-grabbing headlines. The articles report that the Trump administration and Department of Homeland Security (DHS) are evaluating whether language used in sections of AC21 allows the government to stop granting H-1B extensions beyond the six-year limit.

We anticipate that the Trump administration and DHS will ultimately conclude that they do not have the authority to halt H-1B extensions under the parameters of AC21. While the immigration authorities have broad discretion to grant immigration benefits, they cannot act in contradiction to the intent of the law.

According to press reports, the rumored proposal would contradict the clear language of AC21. If the administration does move forward with the proposal—which, again, is only a rumor at present—we anticipate significant litigation in defense of AC21.

Ogletree Deakins’ Immigration Practice Group will continue to monitor any developments on this issue, and will provide updates accordingly.