For Indian information technology firms and tens of thousands of Indians in this country on H-1B visas, the New Year started on a sour note. The proposed new regulations that are reportedly being considered by the Department of Homeland Security are going to affect as many as 400,000 Indians that are currently in the United States on H-1B visa.
McClatchy reported on Saturday that the DHS is considering new regulations that “potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending.”
The American Competitiveness in the Twenty-First Century Act, passed in 2000, allows the DHS to grant H-1B visa holders extensions of two different durations: extensions of one-year and three-year increments.
Anyone whose I-140 Immigrant Petition for Alien Worker form has been approved and has applied for adjustment of status gets a three-year extension under the legislation. Section 104 of the act states: 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.”
Section 105 of the law allows one-year extensions to those who have filed for Labor Certifications more than 365 days before their six-year H-1B visa term. It states: “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.”
McClatchy reported that the “administration is specifically looking at whether it can reinterpret the ‘may grant’ language” of the Act to stop the extensions.
Washington-area immigration attorney Johnson Myalil told The American Bazaar that, if the report is true, three-year extensions are easier to get rid of than the one-year ones.
“Right now [officials are] interpreting ‘may grant’ an extension as ‘shall’ grant,” he said. “If they decide to eliminate this particular type of extension, they can say that it is the discretion of the Attorney General.”
Myalil, a partner at the Hitech Immigration Law, based in Reston, VA, said that regulatory changes are likely required to eliminate the one-year extensions since the law specifies that the “Attorney General shall extend the stay” of the H-1B visa holders.
Most Indians on H-1B have to wait at least 10 years to get their green card because of a limit on the number of immigrants allowed from each country. Because of the sheer number of Indians applying for green cards — 70 percent of H-1B visas are granted to Indian nations and a majority of them do apply for permanent residency — Indians have to wait longer.
Each year, the United States Citizenship and Immigration Services grants roughly 85,000 H-1B visas. The H-1B visas are issued for up to six years after which the visa holders that have applied for green cards routinely seek extensions under the American Competitiveness Act.
According to USCIS, since the beginning of the 2007 fiscal year, nearly 2.2 million Indians applied for H-1B visas. The total number of applications received during the period was 3.4 million.
An analysis of USCIS data indicates that between 300,000 to 400,000 may be on H-1B extensions. And if the administration acts on the latest proposal, it’s a cause for worry for these people.
“If the administration is going to eliminate both extensions, the Indian IT workers are will have to either change the status, or go back to India,” Myalil said.
The attorney said he has received several panic calls from H-1B visa holders in the past two days wondering about their fate. He said his fellow immigration attorneys were also receiving similar calls.
The reported measure against H-1B is not the first by the Trump administration. During the campaign in the run up to the 2016 presidential election, Candidate Trump had denounced what he termed as abuses of H-1B visas.
In his inaugural State of the Union, the president called for a “merit-based” immigration system. In April, Trump signed the “Buy American and Hire American” executive order directing federal agencies to come up with new rules and issue guidance to overhaul the immigration system, in order to protect the jobs of American workers and to prevent fraud or misuse of the visa program.
A Reuters report in September revealed that H-1B petitions are receiving more intense scrutiny since Trump came to power. It is issuing costly and time-consuming challenges to the applicants, the report added.
The administration has also signaled its intention to end issuing work permits to spouses of H-1B visa holders.