Alarm call may have halted H1-B visa changes in the works

Immigration Voice claims its warning was ignored until the mainstream press picked it up

Ritu Jha

Members of Immigration Voice learned early December that the Department of Homeland (DHS) was planning to not just overhaul the immigration system but also end the H1B visa extension, thus affecting hundreds of people applying for green cards either for themselves or their family members. But no one believed them then.

According to Aman Kapoor, co-founder of the organization that addresses issues related to immigration visas and permanent residency, the group put out the word on Facebook and hosted a conference December 18 that drew 1,500 skeptical people.

“People started arguing with us [about the veracity of the claim],” Kapoor told indica.

He said that when the IT behemoths, the US Chamber of Commerce and trade unions joined the argument, the news was posted on DC and so taken seriously worldwide, including by the Indian government.

Kapoor thanked both the whistle-blower who let IV know and said, “The Indian government got serious and USCIS was pressured and backed off. If we wouldn’t have [put this out] people would have learned about it after the fact.”

A spokesperson for the US-India Business Council (USIBC) told indica that the proposed plan “would be tremendously bad policy to tell highly skilled individuals applying for permanent residency and who have been working in the US for several years that they are no longer welcome.”

“This would harm American business, our economy, and the country, Further, it is inconsistent with the goals of a more merit-based immigration system,” she said.

The USCIS strenuously denies that the proposed change was going into effect before pressure came on the agency from without.

In an email Jonathan Withington Chief of media relations, U.S. Citizenship and Immigration Services told indica, “USCIS was never 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*. Any suggestion that USCIS changed its position because of pressure is absolutely false.”

“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American Hire American Executive Order, including a thorough review of employment-based visa programs,” Withington wrote,

He declined to discuss if the plan was ever considered/

“We are not at liberty to discuss any part of the pre-decisional processes; however, all proposed rules are published in the federal register and USCIS posts all policy memoranda on our website.”

He stressed that the “USCIS is focused on ensuring the integrity of the immigration system and protecting the interests of US workers and is committed to reforming employment-based immigration programs so they benefit the American people to the greatest extent possible.”

Withington concluded that “What we can say, however, is that 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. Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21** instead.”

Immigration attorney Shah Peerally welcomed the USCIS decision but told indica that its officials are using backdoors to deny people the green card, among other things by sending out a lot more request for evidence than in years past.

Meanwhile, through a press note leaders of the Hindu American Foundation (HAF), Congresswoman Tulsi Gabbard (D-HI) and Kevin Yoder (R-KS) thanked the administration for the clarification, stating, “We’re grateful for the swift response.”

Suhag Shukla, HAF’s executive director, and legal counsel said such a change in policy would have been “devastating to law-abiding, tax-paying workers and their families who have made America their home. Devastating to the local and state economies where they work. And devastating for America by causing an unprecedented brain drain of skilled workers and potential entrepreneurs.”

Avik Pal, CEO of CliniOps, spoke for other entrepreneurs who rely on H1-B visa workers when he told indica, “Most tech companies have complained many times that the current quota is too low and needs to be increased. Now on top of this, if the H1B visa extension is chopped for the ones whose Green Card is in progress, then it makes it even worse… This will discourage companies from processing green cards in the first place as it [is never issued] comes within the six-year term.”


The relevant parts of the AC-21. For the whole publication, read this.

*SEC. 104. (On limitations to per-country ceiling for employment-based immigrants)

(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who–

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and

(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon.

**SEC. 106 (Special provisions in cases of lengthy adjudications)

(a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of stat us under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since–

(1) the filing of a labor certification application on the alien’s behalf (if such certification is required for the alien to obtain status under such section 203(b)); or

(2) the filing of the petition under such section 204(b).

(b) EXTENSION OF H-1B WORKER STATUS- The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.

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