CELA update on H1B extension beyond 6 years

Since our last news post about reports that the Administration has been considering ways to restrict H-1B extensions beyond the sixth year, employees have raised questions about how likely it is that the Administration would be able to take such an action. There are two things to know: First, as of today, nothing has changed in the existing eligibility for extensions of H-1B status beyond six years. Second, while the length of extensions of status may be subject to change, eligibility to continue extending one’s H-1B status beyond six years cannot be changed by the Administration alone. Today, there are two ways to be eligible for extensions of H-1B status beyond the sixth year: Under 104(c) of the American Competitiveness in the 21st Century Act (“AC21”), an H-1B holder who has an approved I-140 but does not have a green card number available due to per country limits “may apply for, and the Attorney General may grant,” extensions of status beyond the six year limitation. Those extensions can be granted in increments of up to three years. Under 106(a) of AC21, H-1B extensions of status beyond the six year limitation “shall” be granted if the individual’s priority date is at least one year before the original six year limit. This provision applies to situations where the delay is due to slow adjudications of applications as well as for situations where an individual is waiting for their priority date to become current. The specific proposals under consideration at USCIS have not been made available. In our view, under existing law and regulations, categorical elimination of extensions of H-1B status under AC21 could not be done by the exercise of discretion by the Administration. It is theoretically possible that the current three year extensions under Section 104(c) could be shortened, but formal rulemaking would be needed to accomplish this as an across-the-board change. Categorical elimination of extensions of status under Section 104(c), even through formal rulemaking, would face significant legal hurdles. Most importantly, the Administration would not be able to eliminate the ability to extend H-1B status under 106(a), even under rulemaking, because it would run contrary to the express language of (and congressional intent behind) that provision.