Tag Archive for: H-1B extensions

Cyrus D. Mehta & Damira Zhanatova

USCIS New Policy Limiting Adjustment of Status Eligibility Is Bad Policy and Contrary to Law

/0 Comments/in /by

By Cyrus D Mehta and Damira Zhanatova*

As previously addressed here, on May 21, 2026, USCIS issued Policy Memorandum PM-602-0199 (“memo”), announcing that filing an I-485 adjustment of status (AOS) application in the United States will be treated as an “extraordinary” form of relief and emphasizing that most individuals seeking permanent residence should instead complete immigrant visa processing abroad through a U.S. consulate. USCIS presents this as a reaffirmation of a “consistent and longstanding approach” and a return to the “original intent” of INA 245, but the practical effect is a sharp break from decades of adjudicatory practice in which eligible applicants routinely adjusted status from within the United States in both employment-based and family-based categories. The policy is expected to have substantial consequences for employers, families, and individuals who have relied on adjustment of status as the central mechanism for obtaining permanent residence.

The standard set forth in this memo is not only an abrupt upheaval of established USCIS policy, but also in contravention of the law. INA 245(a), codified at 8 U.S.C. 1255(a), states only that “Any alien who has been lawfully admitted for temporary status… such status not having been terminated, may apply for adjustment of status…” Although adjustment of status is a discretionary benefit pursuant to INA 245(a), it has never been interpreted as an “extraordinary” form of relief. The characterization of adjustment of status as “extraordinary relief” is not present anywhere in the INA and would surely have been spelled out by Congress if this was, in fact, its intent. USCIS’s interpretation of the word “may” in INA 245(a) to mean “extraordinary” is not only illogical, but contrary to the meaning of the statute and to longstanding USCIS policy.

The memo’s core message is that adjustment of status is not the norm but an exception. USCIS repeatedly characterizes AOS as “a matter of discretion and administrative grace,” citing decisions such as Matter of Blas, where the BIA characterized adjustment as discretionary relief and described it as “extraordinary” because it allows a noncitizen to avoid the ordinary consular visa-issuing process. The memo quotes that adjustment “was not designed to supersede the regular consular visa-issuing process or to be granted in non-meritorious cases,” and it points to federal cases like Chen v. Foley for the proposition that adjustment is not meant to replace consular processing. It then extends this characterization to current practice by stating that, as a general matter, nonimmigrants and parolees are expected to depart once the purpose of their admission or parole is fulfilled and that seeking AOS instead “contravenes” Congressional expectations.

Under the memo, remaining in the United States and applying to adjust status rather than departing and consular processing will often be treated as an adverse discretionary factor. USCIS says that, with limited exceptions, the statutory scheme suggests that Congress expects paroled and nonimmigrant entrants to depart and pursue immigrant visas abroad, and it notes that applicants who do not depart typically have violated status, overstayed, or engaged in unauthorized employment. The memo invokes Matter of Blas for the proposition that such adverse factors may need to be offset by “unusual or even outstanding equities,” while explicitly stating that the mere absence of adverse factors is not enough to show such equities. What the memo does not mention, however, is that the BIA’s precedent decision in Matter of Arai is still the law. In Matter of Arai, the Board held that where there are adverse factors weighing against the approval of an adjustment of status application, the applicant may need to offset those factors by showing “unusual or even outstanding equities,” but in cases where there are no adverse factors present, adjustment of status will ordinarily be granted, albeit still as a matter of discretion. In other words, Arai makes clear that the presence of statutory eligibility and the absence of negatives should normally result in a grant. The memo adopts the “unusual or even outstanding equities” language while omitting Arai’s equally important holding that, when there are no adverse factors, adjustment should generally be approved.

This is a significant shift assuming USCIS intends to implement the new policy. Historically, although adjustment under INA 245(a) has always been technically discretionary, USCIS adjudications in employment-based and family-based cases focused on statutory eligibility, inadmissibility, and policy-manual guidance on discretion. Eligible applicants in lawful status, particularly employment-based applicants in H-1B or L-1 status and family-based immediate relatives of U.S. citizens, were not treated as asking for “extraordinary” relief merely because they sought to adjust status rather than depart for consular processing. The new memo aims to reverse that presumption by recasting AOS as an act of “administrative grace” that should generally yield to consular processing.

This interpretation depends heavily on a novel reading of the word “may” in INA 245(a). The statute provides that the status of an eligible alien “may be adjusted by the Secretary, in his discretion.” That language plainly grants discretion, but it does not say that adjustment must be “extraordinary,” rare, or disfavored. Elsewhere in the immigration statute, Congress has explicitly used heightened standards like “clear and convincing evidence” when it wished to impose special burdens or reserve relief for exceptional cases. Indeed, INA 245 itself contains provisions that require “clear and convincing” evidence in specific contexts. If Congress intended adjustment of status in 245(a) to be limited to “extraordinary” circumstances, it knew how to say so directly and did not. Interpreting “may” to mean “extraordinary” has no support in the statutory language of 8 U.S.C. 1255. It is a policy choice layered on top of the statute rather than an interpretation compelled by the statute itself.

The broader structure of section 245 and related provisions confirms that Congress saw adjustment as a central, normal mechanism for those already in the United States. Through 245(i), Congress allowed certain individuals who would otherwise be barred (for example, for unauthorized employment or unlawful presence) to adjust upon payment of a penalty, thereby expanding access to adjustment. Through 245(k), Congress created a targeted cure for certain employment-based applicants with limited status violations of 180  days or less from their last admission. Congress also affirmatively created and preserved dual-intent categories like H-1B and L, which only make sense if pursuing permanent residence, including through adjustment, while in nonimmigrant status is an anticipated and legitimate use of the system. At no point did Congress amend 245(a), 245(i), or 245(k) to say that adjustment in those contexts is “extraordinary” or a disfavored exception. When Congress enacted INA section 204(j) portability through the American Competitiveness in the Twenty-First Century Act (AC21), it also included sections 104(c) and 106(a), specifically to allow H-1B workers pursuing permanent residence to extend status beyond normal limits while their adjustment cases remained pending. Those provisions reflect that adjustment of status for dual intent H-1Bs and Ls is routine and normal, not an extraordinary exception.

The structure of 245 and related AC21 provisions thus shows a legislative intent to use adjustment as a central pathway for those present in the United States who meet detailed eligibility criteria, not as a marginal, almost unattainable form of grace. By insisting that the ordinary, statutorily authorized use of these pathways is now disfavored “extraordinary” relief, the USCIS memo runs directly against what Congress actually did in INA 245 and AC21.

In the wake of the Supreme Court’s Loper Bright decision overturning Chevron deference, this kind of aggressive agency reinterpretation of “may” in INA 245(a) should be especially vulnerable. Under Chevron, agencies received considerable leeway to interpret ambiguous statutes. Post-Chevron, courts will be far more willing to ask whether an agency’s reading is consistent with the statutory text and structure. A court looking at 8 U.S.C. 1255 could reasonably conclude that USCIS’s attempt to convert ordinary discretionary language “may” into a requirement that adjustment be rare, “extraordinary” relief is not a permissible interpretation but a rewriting of the statute. The lack of notice-and-comment rulemaking for a shift this sweeping strengthens an Administrative Procedure Act challenge, because the memo functions more like a substantive rule than a minor interpretive clarification.

The memo is also incomplete in its treatment of prior BIA case law. While it leans on decisions like Matter of Blas to characterize adjustment as an “extraordinary” remedy, it omits reference to BIA decisions that recognize the central role of adjustment for immediate relatives and other core categories. For example, BIA cases dealing with spouses and children of U.S. citizens, such as Matter of Cavazos and Matter of Ibrahim, required a favorable exercise of discretion but also acknowledged that strong equities in those relationships often warranted granting adjustment where statutory eligibility and admissibility were satisfied. These decisions do not treat immediate-relative adjustment as rare “extraordinary” relief but as the expected mechanism Congress intended for uniting U.S. citizens with close family. The memo’s silence about that line of cases underscores how selective its reliance on precedent is.

Beyond the prevailing policy of this administration, adjustment of status under INA 245 is the linchpin of the modern legal immigration system for people already in the United States. For employment-based applicants, AOS permits continued work authorization and stable employment relationships while multi-year immigrant visa backlogs clear, sparing both employers and employees the disruption and risk of consular trips and administrative processing abroad. For family-based applicants, especially those with U.S. citizen spouses and children, adjustment is often the only realistic way to avoid lengthy family separation during the green card process. For noncitizens from countries that have faced travel bans or other entry restrictions, consular processing may be effectively impossible or extremely risky. Those who leave may be subject to a visa refusal under INA 221(f).  In these circumstances, a USCIS policy that treats AOS as disfavored “extraordinary” relief threatens to leave many with no viable path at all. The US approves over 1 million people to become lawful permanents, and about half of them apply through adjustment of status. The policy memo, if implemented will bar over 600,000 people from getting green cards through adjustment of status. 

The memo’s approach is especially severe for applicants in long-backlogged categories who are already living and working lawfully in the United States and raising U.S. citizen children. For these families, a pending adjustment application functions as a lifeline: it anchors work authorization, travel permission, and a basic measure of stability in an otherwise precarious system. By recasting adjustment as a rare exception and steering applicants toward consular processing, the policy threatens to tear that safety net away. The harm is magnified by existing conditions at U.S. consulates, where many posts already struggle with long appointment queues, expanded security screening, and unpredictable administrative processing. Forcing large numbers of cases that historically would have adjusted domestically into these consular pipelines will almost inevitably worsen backlogs and delays, compounding the disruption.

The practical consequences for employers will be substantial. If officers, following the memo, routinely decline to exercise discretion favorably in adjustment cases and instead encourage or effectively require consular processing, employers can expect more frequent international travel disruptions, extended periods during which key employees are stuck abroad awaiting immigrant visas, higher legal and logistical costs, and greater uncertainty in workforce planning and retention. These burdens will sit on top of the already-documented consular constraints, including resource limitations and enhanced social media and security vetting, which have made visa processing timelines increasingly unreliable.

For individuals and families, particularly those in backlogged preference categories who are lawfully employed and caring for U.S. citizen children here, the memo threatens to strip away a critical stabilizing mechanism. A pending adjustment application does more than just move a case forward. It provides employment authorization, travel permission, and a degree of protection that is especially vital for people who cannot safely or realistically return abroad for consular processing because of travel bans, persecution risks, or severe consular delays. Under a regime that treats adjustment as an extraordinary indulgence rather than an integral, congressionally designed component of the system, many families will be forced into impossible choices between prolonged separation and abandoning their pursuit of lawful permanent residence altogether.

Since the memo’s release, there has already been an indication that USCIS is attempting to water down its message in response to immediate backlash, an implicit acknowledgment of how vulnerable the policy is under the statute and how disruptive it is likely to be for employers, workers, and families. A recent report on X describes USCIS officials as suggesting that those with applications that “provide an economic benefit or otherwise are in the national interest” will be permitted to continue on their current adjustment path, while others may be asked to apply for immigrant visas abroad depending on their individualized circumstances. Even this “watering down” is contrary to INA 245(a) and will result in more subjectivity and denials. Creating a vague, extra-statutory category of cases that supposedly serve “economic” or “national interest” goals does not cure the underlying legal defect. It simply adds another layer of unconstrained discretion. In addition to the new policy being driven by animus towards noncitizens, whether they are legal or not, it reflects sheer incompetence given the disruption it will cause to businesses and families.

In sum, INA 245 does not preclude adjustment of status, and the memo does not change the law. USCIS has always had discretion to approve or deny and adjustment of status application. Matter of Arai holds that if there are no adverse factors present, adjustment of status should be granted as a matter of discretion. Applicants may still file adjustment of status applications, and respond to requests for evidence, if issued, regarding whether they merit the favorable exercise of discretion. We need to continue to evaluate how the USCIS will adjudicate currently pending adjustment of status  applications and new applications. If there are arbitrary denials because USCIS has begun to view adjustment of status as  “extraordinary” relief,  applicants and their lawyers can challenge them in federal court. Until then, adjustment of status still remains a viable option as before and should not be foreclosed based on a USCIS memo that unlawfully reinterprets the law. 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

David Isaacson

Canada Announces New Program for Holders of U.S. H-1B Visas – But Do They Mean Visas, or H-1B Nonimmigrant Status?

/0 Comments/in /by

In a news release on June 27 issued following remarks at the Collision 2023 conference, Canada’s Minister of Immigration, Refugees and Citizenship, Sean Fraser, announced several new measures as part of “Canada’s first-ever Tech Talent Strategy.” One that will likely be of interest to many foreign workers in the United States is “the creation of an open work permit stream for H-1B specialty occupation visa holders in the US to apply for a Canadian work permit, and study or work permit options for their accompanying family members”.

This program and other parts of the Tech Talent Strategy have already attracted significant media attention. An open work permit, allowing employment by any employer in Canada rather than the specific sponsor required in the United States for an H-1B, may be an attractive prospect for many H-1B visa holders. The availability of work permits for accompanying family members is likely to be attractive to many as well, particularly those whose H-4 spouses would not be eligible for an Employment Authorization Document in the United States. Some important details, however, remain unclarified.

One such detail is the question of exactly who will be eligible for the new program. According to the announcement, “The new H1-B specialty occupation visa holder work permit will be available as of July 16, 2023. Approved applicants will receive an open work permit of up to three years in duration, which means they will be able to work for almost any employer anywhere in Canada. Their spouses and dependants will also be eligible to apply for a temporary resident visa, with a work or study permit, as needed.” The backgrounder issued by Immigration, Refugees and Citizenship Canada (IRCC) also refers to “H-1B specialty occupation visa holders in the US,” at more than one point. Read literally, this would suggest that one will need to possess an H-1B visa stamp in order to obtain the new Canadian open work permit.

Not all H-1B nonimmigrants in the United States, however, will hold a valid H-1B visa stamp, or any H-1B visa stamp at all (even an expired one). Rather, there are multiple circumstances under which one can be in H-1B status, but not possess an H-1B visa as such.

Under section 248 of the Immigration and Nationality Act (INA), also known as 8 U.S.C. § 1258, and the regulations at 8 C.F.R. Part 248, someone who has been admitted to the United States as a nonimmigrant may apply to change status to a different type of nonimmigrant while still within the United States. This process does not require obtaining a new nonimmigrant visa. A new visa is only required if the person wishes to leave the United States and re-enter in their new nonimmigrant status. (Even then, someone making a brief trip to Canada or Mexico of less than 30 days, who has changed status, can sometimes utilize their old visa under a process known as automatic visa revalidation, pursuant to 22 C.F.R. § 41.112(d)(1)-(2).) Thus, someone who entered the United States with, for example, an F-1 student visa, and has never left the United States since then, may have changed their status to H-1B, and may have been issued a Form I-94 acknowledging their H-1B status as part of the approval notice of their application for change of status, but may not have an H-1B visa.

Even if someone did come to the United States with a valid H-1B visa at some point in time, regulations at 8 C.F.R. § 214.1(c) allow for an extension of stay as a nonimmigrant beyond the period of initial admission. In this way, as well, someone whose H-1B visa, and initial period of H-1B admission, have already expired, may nevertheless be in valid H-1B nonimmigrant status. But if such a person does not travel outside the United States during the period of the extension, they need not get a new H-1B visa.

Nor are these the only ways that it is possible to be in valid H-1B status but not have a valid H-1B visa. According to 22 C.F.R. § 41.112(a), “The period of visa validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States.” Rather, as that same regulation explains, “The period of validity of a nonimmigrant visa is the period during which the alien may use it in making application for admission.” And that period is often defined by “reciprocity”, that is, the time period for which a similar visa would be issued to a U.S. citizen by a particular foreign country. The State Department’s reciprocity schedule for the People’s Republic of China, for example, indicates that an H-1B visa will only be issued for 12 months. Thus, if a Chinese citizen is issued an H-1B visa valid for one year because of this reciprocity schedule, but has an approved H-1B petition valid for three years, he or she may be admitted in H-1B status until the end of the three years of petition validity, despite having a visa that will expire sooner than that. Even during the latter part of this initial admission, such a person will have H-1B status but no H-1B visa.

It is not clear why IRCC would want to exclude such H-1B nonimmigrants from the new work permit program, despite their lack of an H-1B visa. Based on the language of the announcement and IRCC backgrounder, however, it appears that they would be excluded. One can hope that this may have simply been an imprecision in language that can be corrected by the time the final program is officially created, but it is at least an open question.

Another open question is exactly how IRCC is going to allocate the limited supply of the new work permits. The announcement and IRCC backgrounder state that “This measure will remain in effect for one year, or until IRCC receives 10,000 applications. Only principal applicants, and not their accompanying family members, will count toward the application cap.” It appears from this that IRCC may simply allocate the 10,000 available numbers for principal applicants on a first-come, first-served basis.

As has historically come up in the H-1B context itself, however, allocating a sufficiently in-demand supply of application numbers on a purely first-come, first-served basis can result in chaos when more than the allotted number attempt to apply on the first possible day, and this can sometimes lead to the institution of a lottery system. Canada has historically sometimes utilized a similar lottery system, for example to allocate the limited number of opportunities for Canadian citizens and permanent residents to sponsor their parents and grandparents for permanent residence, at least in some years. On the other hand, some Canadian immigration programs with limited allocations – including, at times, the parents and grandparents sponsorship program – have been operated on a purely first-come, first-served basis, even if that rewarded those who could (or whose legal representatives could) most quickly file applications as soon as a program opened. We can hope that IRCC will make clear, before July 16, which approach they will be following for this new program.

A third open question is whether there will be any requirement linked to the length of remaining time in H-1B status available to an applicant. The announcement and IRCC backgrounder do not suggest so, but the IRCC webpage guidance to high-skilled workers more generally, which contains a subsection on the “H-1B visa holders” program, says to “Choose this program if . . . your United States work visa is expiring soon.” Hopefully, this language may be just a prediction regarding who might find the program attractive, rather than a requirement of imminent H-1B expiration. Such a requirement could screen out relatively new H-1B nonimmigrants who would rather have an open work permit in Canada accompanied by work permits for their family members, and there is no obvious policy reason for such a requirement.

The official legal basis for the new work permits, which will likely be in the form of a temporary public policy or perhaps a Ministerial Instruction, has not yet been made public by IRCC. Once the official temporary public policy or Ministerial instruction is published, it should be possible to answer the open questions discussed above. A sequel to this blog post will likely be published at that time.

Cyrus Mehta

NO-WIN IMMIGRATION POLICY: DENYING H-1B EXTENSIONS TO SKILLED WORKERS FROM INDIA SO THAT THEY SELF-DEPORT

/6 Comments/in /by

There are many people born in India, and to a lesser extent China, who have been patiently waiting for over a decade for their green cards. They have complied with all immigration formalities and the only thing holding them back is an available visa. The law allows them to continue working on extended H-1B visas while they wait legally in the United States. President Trump, in the name of protecting US workers, wants to send these skilled workers home to wait for their green cards. This is consistent with the Trump administration’s goal to destabilize the immigration system – from the travel ban aimed at Muslims to depriving skilled workers on H-1B visas to remain in their jobs and contribute to the United States.

A McClatchy press report  has sent shock waves within the backlogged H-1B community, as well as alarmed employers who sponsor skilled foreign workers for visas and green cards, attorneys and all people concerned about fairness. The report cites credible sources within the Department of Homeland Security who say that they are drafting a proposal to restrict H-1B visa extensions beyond the six-year limitation, which would result in the “self-deportation” of tech workers, thus opening up jobs for Americans in furtherance of President Trump’s Buy American Hire American Executive Order. Such a move is completely counter intuitive as these H-1B workers have all been beneficiaries of approved labor certification applications that resulted in unsuccessful attempts at locating qualified US workers to perform these specialized duties.

There are reportedly more than 1 million H-1B visa holders in the country, mainly from India, that have been waiting for green cards for more than a decade. Although the H-1B visa’s maximum duration is 6 years, those who are caught in the green card backlogs can apply for either a 3-year extension or a 1-year extension under the American Competitiveness in the 21st Century Act (AC21).

The DHS is specifically looking to reinterpret Section 104(c) of AC21, which provides for a 3-year extension of H-1B visas beyond the 6-year limitation. In order to be eligible for a 3-year extension under 104(c), the H-1B visa holder must be the beneficiary of an approved employment-based I-140 petition and must also demonstrate eligibility for adjustment of status but for the visa not being available as a result of the per country limitation. Section 104(c), however, states that the beneficiary of an I-140 petition “may apply” and the Attorney General (and by extension the DHS) “may grant” such an H-1B extension.

Since the enactment into law in 2000, prior administrations under Presidents Clinton, Bush and Obama have routinely granted 3-year H-1B extensions under 104(c). Even if the statute indicates that the government “may grant” the extension, such discretion cannot be used to arbitrarily deny H-1B visa extensions and thus eviscerate Congressional intent. The purpose of Section 104(c) was to provide relief to those in H-1B visa status who are caught in the employment-based backlogs as a result of the per-country limitation. India and China are the two countries where the per country limit within the employment-based second and third preferences have been oversubscribed. The extended H-1B visa has provided a lifeline to skilled workers who are otherwise eligible for green cards but for their priority dates not being current.

When a statutory provision bestows discretion through words such as “may grant,” such discretion cannot be exercised in an arbitrary and capricious manner. The Supreme Court’s opinion in Judulang v. Holder, 565 U. S. ____ (2011) has provided parameters under which a government agency may exercise discretion in the immigration context relating to a waiver under Section 212(c). The following interesting discussion is worth noting:

This case requires us to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A).  The scope of our review under this standard is “narrow”; as we have often recog­nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision making. When reviewing an agency action, we must assess, among other matters, “‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That task involves examining the reasons for agency deci­sions—or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting “the requirement that an agency pro­vide reasoned explanation for its action”).  The BIA has flunked that test here. By hinging a de­portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner.

. . . .

The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “‘relevant factors,’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi­gration laws or the appropriate operation of the immigra­tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases.

The key in determining whether denying a 3-year H-1B extension is arbitrary is “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Is the DHS proposal to restrict 3-year H-1B extensions based on “relevant factors” or is it planning to disfavor a class of noncitizens through the mere flipping of a coin? The DHS’s proposal will likely fail under this test as 104(c)’s plain language requires the government to grant the extension so long as the prerequisites have been met. This means that so long as one who is in H-1B status is the beneficiary of an approved I-140, and the priority dates is not yet current, this person should be granted a 3-year extension.  Even justifying the “self-deportation” of hundreds of thousands to protect US workers under the BAHA Executive Order is no excuse. BAHA was not around when AC21 was enacted in 2000.  If the DHS seems to reinterpret 104(c) in light of BAHA, this decision can be challenged as it is contrary to the plain meaning of 104(c) as well as Congressional intent. The concern under INA § 212(a)(5) that US workers be protected was already met through the labor certification or by seeking an exemption of it through the national interest waiver. The imposition of BAHA should not upend the carefully crafted statutory structure enacted by Congress over the years.

Moreover, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared that federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not. Based on the holding in Chamber of Commerce v. Reich, if H-1B visa extensions are denied under President Trump’s interpretation of AC21 provisions pursuant to the BAHA Executive Order, they too ought to be challenged as being violative of the INA and it ought to be further argued that the president’s interpretation of a statutory provision, unlike a government agency, is not entitled to Chevron deference.

The title to 104(c) “One-Time Protection Under Per Country Ceiling” does not mean that it empowers the Trump administration to restrict its application to a one-time 3-year extension. The title can clarify an ambiguous statute but shouldn’t be used to contradict the text of the statute. In this case, the text of 104(c) clearly states that three year extensions can be granted indefinitely until the “alien’s application for adjustment of status has been processed and a decision made thereon.” See  Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 n.14 (1981) (the title of an Act cannot enlarge or confer powers); INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 189-90 (1991) (the title of a statute or section can aid in resolving an ambiguity in the legislation’s text).

The Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers  that took effect on January 17, 2017 further restrains the government’s ability to restrict H-1B extensions under 104(c).  Current 8 CFR § 214.2(h)(13)(iii)(E)(i), which implements 104(c),  does not appear to give broad discretion and pertains more to granting discretion with respect to the validity period, as follows:

Validity periods. USCIS may grant validity periods for petitions approved under this paragraph in increments of up to 3 years for as long as the alien remains eligible for this exemption.

 This suggests that if the priority date is likely to become current imminently, the USCIS may shorten the time period of the H-1B extension to less than 3 years. The USCIS may also shorten the validity period if it is planning to revoke an approved I-140 petition if it believes it was previously erroneously granted. These sorts of discretion would pass muster and could have been contemplated under 104(c) when Congress said that the DHS “may grant” the extension. On the other hand, a new rule that would wholesale preclude the granting of a 3-year H-1B extension would be a completely erroneous reading of 104(c) and should certainly invite a lawsuit to challenge the Trump administration’s capricious interpretation. Even an H-1B worker, rather than an employer, should be able to sue as plaintiff  following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, 134 S.Ct. 1377 (2014), which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects. See also Mantena v. Johnson, 809 F.3d 721 (2015) and Kurupati v. USCIS, 775 F.3d 1255 (2014). The proposal appears to be based on pure xenophobia by the Trump administration to curb legal immigration of legitimate skilled workers from India and China who have been waiting for years in the green card backlogs. It does not protect American workers as the labor market has already been tested. Trump’s animus towards immigrants can also be cited in a future court challenge, as was successfully done in court challenges against the travel ban where Trump’s utterances and tweets against Muslims were invoked. Trump’s animus was further evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy –  white nationalism, which can be used to show bad faith if the USCIS starts denying 3-year H-1B extensions.

The Trump administration will have less scope to play mischief with the ability to seek a 1-year H-1B extension under Section 106(a) and (b) of AC21.  Section 106(b) states that the Attorney General “shall” extend H-1B status in increments of 1 year provided a labor certification or I-140 was filed one year prior to the final year in H-1B status, and until the labor certification, I-140 or adjustment of status is denied.  It is not the case that 104(c) is surplusage, as contended by an activist  organization that supports backlogged H-1B visa holders, and so one who qualifies under 104(c) will also be eligible for the grant of a 1-year extension under section 106.  104(c) allows for longer extensions and removes the need to file for extensions every year, and so it is clearly providing an additional benefit. 8 CFR §§ 214.2(h)(13)(iii)(D)(2) and (10), the rules that implement 106(a) and (b), give further support to this position as they both contemplate an approved I-140 petition while an H-1B beneficiary seeks a 1-year extension beyond the sixth year.  The widely held view is that either section can be applicable when its own conditions are met.  There are some cases where only 104(c) is available (where the labor certification was filed in the sixth year or final year of H-1B status and the I-140 is approved in that year), some cases where only 106(a)-(b) is available (where the labor cert or I-140  filed one year before the 6th year is still pending or where the priority date is current), and some cases where both are available but 104(c) gives greater benefits. Even when both are available, at times, for strategic reasons, one may wish to still seek an H-1B extension for 1 year under 106(b) if the priority date will become current at the time of adjudication of the extension request.   Nothing in the text or logic of the statute indicates that 106(a)-(b) ceases to become available, when it otherwise would be, simply because 104(c) is also available.

While the need of the hour is to oppose any arbitrary changes in interpreting 104(c), the ultimate goal is to reduce the green card backlogs. AC21 is a mere band-aid that provides relief to H-1B workers in a hopelessly broken immigration system that keeps them from getting green cards for years on end. HR 392 is one vehicle through which the backlogs can get reduced through elimination of per country limits. Still, HR 392 is not the magical elixir as backlogs will likely remain, but they will be far less. In fact, all will likely face a few years of backlogs if the per country limits are eliminated. If we can also hope for the unitary counting of derivatives in addition to HR 392, that will completely drain the employment-based system of backlogs. While all this is wishful thinking under a Trump administration, it never hurts to strive for a sensible winning immigration reform for the good of the country. Until backlogs are completely eliminated, the ability of skilled workers to remain in the US and extend H-1B status should never be taken away through policies inspired by white nationalism and xenophobia under the Trump administration. This can be the only explanation for attacking immigration in a full employment economy and BAHA is only thinly veiled nativism. In conclusion, just because a statute says “may” does not mean that the Trump administration can capriciously defeat the will of Congress by denying H-1B extensions to hundreds of thousands of Indians so that they may self-deport – an action that is a no-win for the United States or the foreign national skilled worker. Fortunately, there is enough protection in the AC21 law that will make it very hard for the Trump administration to see the light of the day with such a loser immigration policy.