Why Trump administration cannot force Indian H-1B visa holders to self-deport

H-1B visa extensions are governed by the American Competitiveness in the Twenty First Century Act, a law enacted in 2000 by Congress. (Representational picture)   | Photo Credit: Reuters

The Donald Trump administration may end the existing practice of extending H-1B visas beyond six years, when visa holders wait for green card approvals, numerous news platforms reported over the last week. These reports claimed that such a move will lead to the 'self-deportation' of a large number of Indian Americans - some said between 500000 and 750000. These reports are alarmist. The Hindu spoke to two immigration lawyers, who explained the law and how it could be changed, if at all. Navneet S. Chugh, heads law firm Chugh LLP that has 15 offices across the U.S, India and Brazil and is an expert on immigration laws. Christopher Drinan, is an immigration attorney with Murthy Law Firm in Maryland. The following is a summary of the factual situation, based on conversations with them.

What is the concern?

The speculations began on December 31, 2017, after news portal McClatchy DC Bureau reported that the Trump administration will stop the existing practice of H-1B visa extensions beyond six years, when beneficiaries wait for permanent residency in the U.S, also called the green card. The temporary work visa is usually granted for two three-year terms, extendable beyond six years only when a permanent residency application is in process. The number of Indians waiting for the green card is large, and they usually get three year extensions beyond the first six years. An anonymous government source quoted in the original report 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.” Numerous news platforms reproduced the story, prompting reactions from industrial bodies, professional associations and even American lawmakers. Meanwhile, there has been panic among Indian Americans who are in the long queue for green cards.

Which law governs extension of H-1B visa extensions?

H-1B visa extensions are governed by the American Competitiveness in the Twenty First Century Act, a law enacted in 2000 by Congress. It has two provisions related to extension of H-1B visas. 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. 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 is allowed. I-140 is the first step in seeking permanent residency in the U.S.

Can the Trump administration change this existing system of extensions, through an executive action?



The section that governs three-year extensions uses the word ‘may’ - the Attorney General “may grant” three year extensions. But the other section that governs one year extensions uses the word ‘shall’ - that the Attorney General shall grant extensions for one year. It is mandatory under the law. So, in the worst case scenario, H-1B visa holders will have to apply for one year extensions when they wait for a green card, beyond the first six years. This will be expensive and cumbersome.

Can the administration stop three-year extensions?

Technically it can, by invoking the discretion allowed by the word “may,” but the decision is unlikely to stand judicial scrutiny, For 17 years since the Act was passed, three-year extensions have been the norm. The government will have to defend the change in court, which won’t be easy. Secondly, use of discretion will also have to be based on some objective criteria and a blanket ban is unlikely to pass judicial scrutiny.

Can the administration change anything in the H-1B visa programme?

Yes. What has been done through an executive decision can be undone through an executive decision. For instance, the work permission given to spouses of H-1B visa holders is not written in the Act, but is based on an executive decision. The Trump administration can overturn it, and it is highly possible that it will, after the ongoing review of the H-1B programme. The lottery system to select the beneficiaries of the programme is based on an executive decision.

What does the review of the H-1B programme by the administration lead to?

The review could result in some executive measures such as denial of work permits for spouses and changes in the process of selection of beneficiaries. It could also draw up a list of legislative action for Congress to consider. The Trump administration could submit its wish list to Congress that might also include ending of extensions. But its passage will depend on a comprehensive agreement between the Republicans and the Democrats on multiple issues related to immigration. H-1B visa programme is only one component in that.

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Printable version | Oct 10, 2021 9:50:42 PM |

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