Various newspapers and online sources reported last week that the Department of Homeland Security (DHS) was circulating a draft of a new rule that would have curtailed the availability of certain H-1B extensions. According to a report published last night on the McClatchy DC Bureau website, which is the news outlet that originally published the rumors about the proposed rule, the U.S. Citizenship and Immigration Services (USCIS) has now stated through an official spokesperson that these rumors are false.
Under the Immigration and Nationality Act (INA), H-1B classification is normally limited to a total of six years, unless the foreign worker resided outside the United States for an uninterrupted period of one year, in which case the worker would be eligible for another six-year period. Under amendments to the INA made by Congress in the American Competitiveness in the 21st Century Act (AC21) in 2000, H-1B extensions may also be requested beyond the six-year limit where the H-1B worker is the beneficiary of an employer-sponsored green card process, and that process had been delayed due to quota backlogs and/or lengthy government processing times. Under current regulations, these extensions are granted as a matter of course if the basic legal requirements are met. The earlier press reports from last week suggested that the DHS was now considering modifying its current interpretation to make granting of extensions based on quota backlogs, the so-called “3-year extensions,” under Section 104(c) of AC21, discretionary.
The rumored changes that originally appeared in an article on the McClatchy website on December 30, 2017, were, according to the author, based on two unnamed "U.S. sources" who had been "briefed by Homeland Security officials." One source is quote in the article as saying: "The idea is to create a sort of 'self-deportation' of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans." The McClatchy rumor was repeated by various other news outlets, many of which either misinterpreted or exaggerated what was stated by the original source. One prominent U.S. newspaper, for example, suggests that the DHS was proposing to end all H-1B extensions, which was clearly not what was said in the McClatchy article. Several widely circulated Indian publications also set off a minor panic by suggesting that the proposed changes would result in mass deportation of Indian workers in the United States.
While the article on the McClatchy website from last night maintains that its original article was accurate, it now quotes USCIS Chief of Media Relations Jonathan Withington, who states that the “USCIS was never considering such a policy change.” Mr. Withington does, however, confirm that the USCIS is considering other policy changes in line with Trump’s “Buy American, Hire American” Executive Order.
We will provide more information as it becomes available.