Following recent news reports that U.S. Citizenship and Immigration Services was planning a policy change that would prevent H-1B workers caught in the green card backlog from extending their status, the agency is indicating now that it is not pursuing such a proposal.

McClatchy DC reported on Dec. 31 that USCIS planned to reinterpret current law in a way that would stop H-1B workers from extending their status while awaiting final adjudication of their green card applications. Under the American Competitiveness in the 21st Century (AC21) Act, USCIS officers may grant extensions to H-1B status beyond six years for green card applicants who have an approved I-140 immigrant petition but who are unable to adjust status due to per-country limits. Since the statute was implemented in 2002, USCIS officers have consistently exercised their discretion to allow such extensions.

USCIS has now told McClatchy that while it will conduct a thorough review of employment-based visas, it has no plans to make a regulatory change that would reinterpret the H-1B extension provisions of AC21.

“USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” said USCIS chief of media relations Jonathan Withington, as quoted Tuesday in McClatchy DC. He denied that the agency was ever considering the change. According to McClatchy, however, the proposal had drawn a sharp reaction from business leaders, causing USCIS to rethink its position. The move would have potentially affected hundreds of thousands of H-1B employees.

BAL Analysis: USCIS’ indication that it is not pursuing a policy change on H-1B extensions under AC21 is welcome news for the business community. The agency, however, will continue to pursue initiatives and regulations that limit employment-based visa categories and criteria.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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