Legislative Barriers Likely Prevent Trump from Eliminating AC21 H1B Extensions

In recent days, news of a potential change in policy related to the American Competitiveness in the Twenty First Century Act (AC21) has begun to spread throughout the legal and immigrant communities. Sources claim that the Trump Administration is considering regulatory changes to the policy regarding H1B extensions beyond the standard 6-year maximum. There certainly are changes to the AC21 regulations that could be made. 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.

Two Potential Grounds for H1B Extensions Under AC21

AC21 provides two means by which an H1B worker may extend status beyond six years. First, under AC21 section 104(c), an individual may be granted an extension of status in three-year increments based on an approved immigrant petition for alien worker (form I-140) with a non-current priority date. Second, pursuant to AC21 section 106(b), an H1B worker is eligible for an extension of H1B status in one-year increments beyond the six-year maximum, based on a labor certification or I-140 petition filed at least 365 days prior.

Importantly, the statutory language for 104(c) uses the word “may,” providing the U.S. Citizenship and Immigration Services (USCIS) with some discretion as to whether to approve such a request. Historically, the USCIS has not exercised its discretion to deny H1B extensions filed under 104(c). The Trump Administration, however, potentially could reverse this trend and stop issuing these three-year H1B extensions. Even then, however, the exercise of discretion by an administrative agency generally requires the use of some objective parameters; blanket denials by the Trump Administration could be challenged in court, particularly given that USCIS policy has been to consistently approve these extensions for more than 17 years.

The Trump Administration likely has far less leeway under 106(b). This AC21 provision states that the government “shall” issue one-year H1B extensions. Therefore, unlike the three-year extension, there is no room for discretion on the part of the government. Further, this immigration benefit continues to apply “… until such time as a final decision is made on the alien’s lawful permanent residence.” Unless the INA is amended by Congress, any attempt by the Administration to alter this provision undoubtedly would result in a rash of federal lawsuits.

Conclusion

While it is troubling that the Administration continues to push for ways to make life more difficult for foreign nationals working in the United States, this nation’s separation of powers helps to check the President’s power to do so. It should also be noted that this supposed attempt to reinterpret AC21 comes from an unconfirmed media report. As of yet, no official statement has been made by the USCIS on this topic, and no formal action has been taken. As soon as any new information becomes available, the details will be posted on MurthyDotCom. Subscribe to the MurthyBulletin for future updates.

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