New H-B Extension Exception About to Become Law

Immigration news on Capitol Hill was made early last week. Congress has stressed to the public its highest priority is establishing the Office of Homeland Security. And until this new agency was established, one should not expect any new immigration legislation to pass. Despite this, lobbying efforts by immigration practitioners proved successful last week. Congress attached new immigration provisions to the Department of Justice’s Appropriations Act and will be sending it shortly to the president for his signature.

In general, the Appropriations Act is the mechanism that funds the Department of Justice and its agencies (such as the FBI). The president is expected to soon sign this act into law in order to obtain funding for the Department of Justice. This will also pass new immigration laws, one of which is particularly significant to extending H-1Bs.

The law currently puts a six-year limit on H-1Bs. Those H-1B nonimmigrants who have reached their sixth year will have to either leave the U.S. or change to another nonimmigrant status. An exception was made to allow those H-1B nonimmigrants who are trying to obtain their permanent residence, through labor certification, to extend their status beyond the six years. However, to qualify for the exception, an immigrant visa petition or an immigrant visa and its underlying labor certification processing must have been filed and pending with for over 365 days. Those who fit this category are allowed to extend their H-1B’s in one-year increments until their permanent residence status is adjudicated. The new immigration act will expand that exception to include those H-1B nonimmigrants whose labor certifications have been pending for 365 days or more.

Practitioners quickly identified that the present exception needed to be expanded and lobbied Congress. The labor certification component of obtaining permanent resident status is suffering from lengthy backlogs. Labor certification applications that were being approved in a few months are now taking more than 2 years to be approved. This is due to the explosion of applications the U.S. Department of Labor received in response to 245(i). Because of this 2-year delay, many H-1B workers are not able to file immigrant visa petitions before their sixth year of H-1B status ended. Even though labor certification takes more than 365 days to adjudicate, that alone is not enough to qualify one for the exception. The exception also requires an immigrant visa be filed.

Because of the amount of time needed to process the labor certification and immigrant visa, most H-1B nonimmigrants who started the process after their second year of H-1B status would not qualify for the exception allowing them to extend their H-1Bs beyond the six years. The alternatives were neither practical nor acceptable. Leaving the U.S. would mean leaving a six-year investment towards permanent residency. Employers are also reluctant to leave a position open for the remaining two to four years while INS processes the case. Employers also lose the investment they had in obtaining permanent residency for valuable employees.

The new provision, once it becomes law, allows workers to remain in the U.S. in lawful H-1B status while their permanent residency application is processed. Employers retain valuable employees and employees retain valuable employment. Fears that an H-1B would not be able to be extended because of Department of Labor delays in processing will be quashed. The new provision also allows H-1B nonimmigrants to safely wait as long as their fourth year in status before they begin the labor certification process. Immigration practitioners identified the problem with the present exception and alerted Congress. Despite Congress indicating it would not consider any new immigration legislation, immigration practitioners were able convince Congress otherwise. The expanded H-1B extension exception will soon be before the president. Once it is signed into law, many H-1B nonimmigrants will be able to rest easy.