Recent reports about the possibility of the Donald Trump administration ending the extension of H-1B visas beyond six years, as applicants wait for green cards, are alarmist and inaccurate, immigration experts say.
It is impossible for the executive branch of the government to overturn the provisions that are written in a law passed by the U.S Congress and effective for the last 17 years, multiple legal experts familiar with the subject told The Hindu. The Trump administration is currently reviewing the H-1B visa programme used largely by Indian employees, as part of its Buy American, Hire American agenda.
The speculations began a week ago after news portal McClatchy DC Bureau quoted an anonymous government source who said, “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,” by stopping the practice of H-1B visa extensions beyond six years. The temporary work visa is usually granted for two three-year terms, extendable beyond six years only when a permanent residency, or green card, application is in process. The White House and the U.S Citizenship and Immigration Services (USICS) did not respond to requests from The Hindu for a comment on the report even as it has triggered panic among Indian Americans and protests from Indian American lawmakers.
“Only what was done by executive action can be undone by executive action. This “no H-1B extension policy” being floated cannot really be changed by executive action because it was part of the Act that made it,” said Navneet S. Chugh, who heads law firm Chugh LLP that has 15 offices across the U.S, India and Brazil.
American Competitiveness in the Twenty First Century Act, the law enacted in 2000 by Congress that governs these questions at hand, has two provisions related to H-1B extensions, pointed out Christopher Drinan, an attorney with Murthy Law Firm in Maryland — “under 104(c), an individual may be granted an extension of status in three-year increments based on an approved immigrant petition or form I-140, and under section 106(b), an extension of H-1B 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.” I-140 is the first step in seeking permanent residency in the U.S.
The reports over the last week have been about the executive reinterpreting the words “may be granted” in 104 (C) and using executive discretion to deny extensions. But that is not easy, because there is a 17-year precedent of how that provision has been implemented. “…they will not be able to change. They can, but the courts would quickly reverse it,” said Mr. Chugh. “It is possible that the administration can invoke discretion, but the fact that it has not done it in the last 17 years will go against it in the court. And discretion also has to be based on some objective criteria and cannot be a blanket denial. In any case, such a move will lead to a barrage of suits, and the government will likely lose it immediately.”
Now, even if the government begins to deny three year extensions,“mass deportations,” are out of question. “The one year extension is here to stay unless the administration convinces Congress to change it as part of a bigger immigration deal, and the the Democrats agree to it as part of a deal,” said Mr. Chugh.” “The section that governs three-year extensions has the word ‘may’ - the Attorney General may grant….Three year extensions have been the norm. But the other section that governs one year extensions uses the word ‘shall’ - that the Attorney General "shall grant"…So it is mandatory under the law,” said Mr. Drinan. So in the worst case scenario, if the executive invokes discretion under section 104 ( c) , and in the unlikely event of the court refusing to strike it down, those waiting for green card still will continue to get one year extensions under 106(b).
Getting one year extensions can be cumbersome, expensive and harassment, said Mr. Drinan, if the administration actually goes down that path for merely reducing the duration of extension. Any change beyond that will require the Republicans and Democrats agreeing on a comprehensive immigration reform and enact a new law. The Trump administration is working on it, and there are multiple, conflicting view points on table. “Hopefully cooler heads will prevail, and this balloon being floated will not become law. This will affect both Indian and non-Indian companies….We are talking about half a percent of the American work force,” said Mr. Chugh.
