Notably, there are two separate sections of AC21 which provide for extensions beyond the six-year limit. The first is Section 104(c), which states that DHS “may grant” H-1B extensions of up to three years for H-1B workers who have an approved I-140 petition but do not have a “current” priority date. The second section of AC21, Section 106(a), states that DHS “shall extend” the stay of H-1B workers if more than 365 days have elapsed since the filing of a labor certification and/or employment based immigrant petition on their behalf.
DHS is reportedly considering limiting the application of AC21 Section 104(c) to treat three-year H-1B extensions based on an approved I-140 petition as discretionary, based on the permissive language (“may”) used in Section 104(c) (“may”). Because of the mandatory wording used by Congress in Section 106(a) (“shall”), DHS will likely be unable to change the one-year H-1B extension provision without Congressional action.
If the reports are accurate and if DHS goes forward with new regulations with this intent, H-1B workers in backlogged employment-based green card categories, particularly those from India and China, may be disproportionately affected by this reported rule change.
However, even if three-year extensions are not granted, the majority of these employees should still be able to extend H-1B status in one-year increments under Section 106(a), provided they had a labor certification or employment-based immigrant petition filed more than 365 days prior to reaching their six-year limit.
Importantly, the Trump Administration will almost certainly need to issue a formal, proposed rule change and permit a “notice and comment” period of at least 60 days before any change can be made. To date, DHS proposed no regulation or formal announcement regarding changes to H-1B extensions under AC21. In addition, any proposed change to this important H-1B rule will likely be challenged immediately in the courts.
In summary: the Trump Administration has not yet taken the formal, required steps to make any changes to the AC21 rules governing post-sixth-year H-1B extensions. Any such rule change will likely take months of required process steps and court challenges. At present, the regulations governing AC21 extensions for H-1B employees in the employment-based green card process remain unchanged.