The past ten days have been an extremely harrowing and nerve-wracking time for Indian nationals on H-1B visas in the United States. It all began with a story by McClatchy — a very credible, 160-year old news organization — on December 30 which revealed that the Trump administration is considering new regulations that could stop “hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending.”
The maximum duration an H-1B visa holder can stay in the United States is six years. A 2000 law, enacted in the final months of the Clinton administration — at the height of the Silicon Valley tech bubble — allows these visa holders to continue to stay in the country beyond the six years, provided they have applied for green cards.
The American Competitiveness in the Twenty-First Century Act, popularly known as AC21, allowed two different types of extensions: a three-year extension if the applicant’s I-140 Immigrant Petition for Alien Worker form has been approved; and a one-year extension if the applicant has filed for Labor Certifications more than 365 days before the end of the six-year visa term.
According to McClatchy, the administration is now considering eliminating both these extensions.
An American Bazaar analysis shows that between 300,000 and 400,000 Indian nationals may be currently living and working in the United States because of these two extensions. Several Indian media outlets, which have been covering the issue wall to wall, have arrived at a much higher figure: up to 750,000.
The McLatchy report and subsequent coverage of it in the Indian media caused widespread panic among H-1B visa holders and their family members. Several immigration attorneys have told the American Bazaar that they are getting calls from clients worried about being forced to relocate. Concerned tech employees have also been flooding internet immigration forums searching for answers and discussing whether to sell their homes and be ready to relocate.
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What are the chances of the administration implementing the proposal? Will the Department of Homeland Security deny H-1B extensions of hundreds of thousands who are awaiting their green card and force them to go back to their countries, in a move that McLatchy characterized as “self deportation”? Should those on H-1B panic? Could the report be true?
To answer the last question, first: So far the administration, the United States Citizenship and Immigration Services, or the Department of Justice have not denied the existence of the proposal. Which indicates that the proposal is indeed being circulated within the administration.
But the question is whether the White House is on a solid legal ground to implement it, or to re-interpret the two AC21 clauses that allow the extensions?
Here the general consensus among immigration lawyers is that it’s very unlikely that the administration would be able to eliminate extensions without the congressional approval.
As the New York-based immigration lawyer Cyrus Mehta points out on his blog, citing past precedents, “a presidential executive order cannot supersede a law previously passed by Congress.”
Murthy Law Firm, based in Owings Mills, MD, writes in its weekly bulletin on January 3 that even if the administration wants to eliminate H-1B extensions, legislative barriers might prevent it from doing that.
“There certainly are changes to the AC21 regulations that could be made,” it writes. “But, without Congressional approval, the plain language of the statute makes it unlikely that the Administration could completely eliminate the ability of H1B workers to extend status beyond six years.”
Rajiv S. Khanna, an Arlington, VA,-based immigration lawyer, is also of the opinion that the USCIS cannot discontinue H-1B extensions beyond six years. “In my opinion, the answer is: no,” he writes on his website. “Can they try? Yes, but they will need to change the law through the Congress. Drastic changes through executive action are legally unavailable.”
The three-year extension is granted under section 104 of AC21, which states that the US “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.”
The one-year extension is given under section 106 of the law, which says, “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.”
According to McClatchy, “administration is specifically looking at whether it can reinterpret the ‘may grant’ language” of the Act to stop the extensions.”
But Khanna disputes notion that the two sections can be reinterpreted to deny the extensions: “The law that permits, in fact mandates, the availability of extensions beyond six years is clearly binding upon the Trump administration,” he writes. “The idea that is being floated that there are occasional uses of the word “may,” which permits the government to implement or not to implement the extension provisions. That idea is incorrect. The law, American Competitiveness in the 21st Century Act (AC21), permits no discretion in availability of extension beyond six years.”
Now, even if the administration goes through the congressional route to eliminate the extensions, it will not be an easy task. The provisions will have to be pushed as part of another bill. The last major immigration bill passed by one of the two chambers of the US Congress was in 2013. But that bill died in the House of Representatives. The last major immigration reform legislation was enacted in 1986.
One of the first to denounce the current proposal to eliminate the extensions was the influential US Chamber of Commerce, which houses the US-India Business Council. “It would tremendously be a bad policy to tell highly skilled individuals who are applying for permanent residency and have been working in the U.S. for several years that they are no longer welcome,” a Chamber spokesperson said in a statement emailed to The American Bazaar. “This policy would harm American business, our economy, and the country. Further, it is inconsistent with the goals of a more merit based immigration system.”
There are any number of reasons the administration should shy away from sending hundreds of thousands of people back to their countries, including economic, political, humanitarian and foreign policy factors.
Foreign nationals currently on H-1B extension are making huge contributions to the US economy. A significant of percentage of them owns homes in the United States. Those who do not own homes, rent apartments, or homes here. Just imagine the depression it could cause to home and rental market in this country should they all go back. Being decent wage earners, they also spend a good amount in this country.
As has been reported, a vast majority of H-1B visa holders are Indian nationals. Politically, it will certainly alienate the Indian American community, which is fast becoming an influential constituency in this country. It will also anger India, a friendly nation that is becoming more and more crucial to US interests in Asia.
From a humanitarian standpoint, sending hundreds of thousands of people, along with their family members, including many young children born in the United States back would be plainly immoral.
Reston, VA, -based immigration lawyer Johnson Myalil points out that sending the children would especially be hard to justify. “Many of these kids are born here,” he says. “They would be asking the parents of US citizens who were born here legally to go back. They are not ‘anchor babies’. Culturally, or otherwise, they have known only this country and they do not have anything back in the countries of their parents. If they are sent to these countries, it would be a real transplantation. There would be a real psychological toll.”
DHS mulling major change to H-1B visa program (January 2, 2018)
Indian American family faces deportation for $20 million H-1B visa fraud scheme (December 29, 2017)
Indian beneficiaries filing the maximum number of H-1B petitions since 2007 (December 15, 2017)
New H-1B visa reform of Trump might take longer for implementation (March 13, 2017)
Trump’s proposed changes in visa rules might result in fewer H-1B aspirants (February 6, 2017)
Will Donald Trump clamp down on H-1B visas? (November 12, 2016)
Trump rails against H-1B visas in new immigration plan (August 17, 2015)