Department of Homeland Security (DHS) Considering Changes to H-1B Extension Rules

DHS is reportedly considering new regulations that would limit the ability of H-1B workers who are in the lawful permanent residence (LPR) process to obtain an extension of their H-1B status beyond the usual six-year limit of authorized stay. The reported proposal, which arises from President Trump’s “Buy American, Hire American” executive order, could impact thousands of H-1B workers and their families, many of whom have been waiting in line for a green card for years.

Under current law, the American Competitiveness in the Twenty-First Century Act (AC21) has two provisions, section 104(c) and section 106(a), which enable DHS to grant an H-1B extension to an H-1B worker who has reached the six-year limit if certain milestones in the LPR process are met such as having an approved I-140 petition but stuck in a quota backlog and not eligible for LPR filing or approval.

To date, DHS has not issued a proposed regulation or formal announcement regarding its intention to change its long-standing practice in adjudicating H-1B extensions under AC21. For DHS to implement such a change, it would need to issue a proposed regulation and follow the notice and comment rulemaking procedures set forth in the Administrative Procedure Act. That could take months. Any policy change before that could be subject to litigation. Moreover, any final rule could also be subject to litigation.

ATTN E-Verify Enrolled Employers

Recently, E-Verify released a redesigned participation poster. The new poster informs current and prospective employees of their legal rights, responsibilities, and protections in the employment eligibility verification process.

The poster is now available in English and Spanish as one poster. As stated in the E-Verify User Manual, employers must replace their participation posters when updates are provided by the U.S. Department of Homeland Security. Employers may also display any of 16 foreign language versions of the poster. The new posters can be downloaded when participants log into E-Verify.  

Employers are still required to display the Immigrant and Employee Rights (IER) Right to Work posters in English and Spanish. To learn more, see the E-Verify Participation Posters webpage.