The Department of Homeland Security is reported to be considering changes to regulations that currently allow certain individuals in H-1B status to extend their status beyond the 6-year limit. The changes being considered would impact individuals who have an approved I-140, but are not yet able to apply for permanent residence (green card) due to the visa backlog. Currently, such individuals are eligible to extend their H-1B beyond the 6-year limit in 3-year increments, which allows them to continue working without interruption for their US employer while they wait for their priority date to become current.  Although no changes to the extension regulations have occurred, DHS is reported to be considering making these extensions discretionary, which would greatly increase the risk of denials.

Importantly, any change to DHS’s interpretation of this regulation would require a formal announcement followed by a 90-day notice and comment period before any changes could be implemented. In addition, any change to DHS’s longstanding interpretation of law would be subject to extensive litigation, which would likely further delay implementation of any change.

While these reported considerations are worrisome, there have not yet been any changes in DHS regulations or policies. We will continue to stay abreast of any changes to this and other DHS policies, and will post updates on our website.