facts about H1B visa and its revised rules

We have been hearing that some immigration lawyers are spreading misinformation online that the threat to H-1B extensions beyond the 6th year is not real. Immigration Voice thinks that some immigration lawyers are adopting a reassuring attitude online so they can appear sympathetic to immigrants for the purposes of attracting business when they are actually spreading misinformation. We do not think our members should trust these wolves in sheep’s clothing.

We believe that many immigration lawyers who rarely see the insides of a courtroom, mostly function as paralegals filling out different immigration forms like I-130, I-140, and I-485 – while trading rumors of the latest adjudication trends. Immigration Voice thinks it is unwise to accept policy advice from such immigration lawyers. Just a few years ago, our community witnessed this phenomenon first hand when some immigration lawyers filed what we believe was a frivolous and nonsensical lawsuit to challenge DHS’s authority to set the criteria for accepting Adjustment of Status applications (the Visa bulletin lawsuit). It is disappointing to see these immigration lawyers looking at this whole issue as a popularity contest when lives and careers of people are on the line.

For the benefit of our members, here is the truth about why the threat to H-1B extension beyond the 6th year is VERY REAL.

There are two sections of AC21 law, Section 104(c) and Section 106(b), that specifically address the extension of H-1B under two (2) separate situations –

1.) Section 104(c) – the “may” statute – explicitly applies clearly to “protection under per country ceiling” and to people who are “eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs”

It means that if you are born in countries that are backlogged (say India or China) and your green card application is pending/delayed due to Per-Country Limits which leads to visa unavailability depending upon country of birth, then, USCIS will apply Section 104(c) to your H-1B extension petition.

Under Section 104(c), extensions are at AT THE ATTORNEY GENERAL’S DISCRETION – which means the Attorney General can decide not to approve your applications for H-1B visa extensions beyond the 6th year if the green card petition is delayed due to Per-Country Limits. Meaning, as per the law, if you are born in a country where dates are backlogged (say India or China) and your I-140 is approved, USCIS has to apply Section 104(c) to grant you H-1B extension beyond 6th year, and the Attorney General (read that DHS/USCIS) can decide not to extend your H-1B status, and it will not require any change in the law by Congress.

2.) Section 106(b) applies to “lengthy adjudications” meaning if your case is pending because of “lengthy Adjudications” — meaning processing delays of USCIS (not because of Per-Country Limits which is specifically handled separately in the law in Section 104(c)), in that case, you are eligible for H-1B extension under this subsection.

Under Section 106(b), H-1B extensions beyond the 6th year “shall” be granted in one (1) year increment if the Labor Certification for your green card petition was filed more than 365 days, and your I-140 is not yet approved. But if you have approved I-140 but you are unable to apply for Adjustment of Status due to Visa Bulletin being not current for your priority date due to Per country limits, in that case, Congress wants your application to be considered under Section 104(c) and you are not eligible for “lengthy adjudications” by USCIS, meaning your application is not eligible for the H-1B extension under 106(b). You can apply for an extension under Section 104(c), and then it is completely at the discretion of the Attorney General to grant your H-1B extension application.

Can someone with approved I-140 unable to apply for I-485 (due to Per-Country Limits) apply for a one-year extension under Section 106(b)?

If you have approved I-140 and you are unable to apply for Adjustment of Status due to Per-Country Limits (meaning you are born in a backlogged country like India or China), then the Attorney General can decide NOT to extend your H-1B petition.

There is explicit Supreme Court doctrine called the “surplusage canon” – the presumption that each word Congress uses is there for a reason. Since Congress specifically said that applicants waiting due to Per-Country Limits must apply for an H-1B extension beyond 6th year under Section 104(c), and the law requires that USCIS cannot grant you H-1B visa extension under Section 106(b).

Therefore, if your I-140 is approved and your dates are not current due to Per-Country Limits, then the Attorney General has the authority to decide not to extend your H-1B visa beyond 6th year.

And if online immigration lawyers are correct that Section 106(b) governs the matter, then under “surplusage canon” there would be zero need for Section 104(c), that would render Section 104(c) useless – which specifically discusses the extension of H-1B visa for cases delayed due to Per-Country Limits. That is not an interpretation the courts will accept. The “may” problem in Section 104(c) is VERY REAL, and we will need to fight with all our energy to stop this from happening (especially by pushing to enact HR 392).

For your reference, here are relevant sections of the law – Section 104(c) –

“Section 104(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING – Notwithstanding Section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who–

(1) is the beneficiary of a petition filed under Section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of Section 203(b) of that Act; and

(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon.”

And Section 106(c) reads as –

“SEC. 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.

(a) EXEMPTION FROM LIMITATION- The limitation contained in Section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under Section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under Section 204(b) of that Act to accord the alien immigrant status under Section 203(b) of that Act, or an application for adjustment of stat us under Section 245 of that Act to accord the alien status under such Section 203(b), has been filed, if 365 days or more have elapsed since–

(1) the filing of a labor certification application on the alien’s behalf (if such certification is required for the alien to obtain status under such Section 203(b)); or

(2) the filing of the petition under such Section 204(b).

(b) EXTENSION OF H-1B WORKER STATUS- The Attorney General shall extend 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.”

We hope you treat this seriously and not listen to any misinformation from incompetent immigration lawyers – and that you will understand the sense of urgency behind getting H.R.392 done.

Courtesy: Immigration Voice