Breaking News on H-1B Extension Rules and DACA Phase-out

USCIS Not Considering Change to H-1B Extension Rules

The U.S. Citizenship and Immigration Services (USCIS) has stated that it is not considering a regulatory change to the H-1B extension rules. It was previously reported that the Department of Homeland Security (DHS) was looking at whether it could stop approving H-1B extensions for H-1B workers who meet the statutory requirements of section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21), by interpreting the “may grant” language as discretionary. Section 104(c) provides that the DHS “may grant” a three-year H-1B extension beyond the six-year maximum period if an H-1B worker: (1) has an approved employment-based immigrant visa petition under the EB-1, EB-2 or EB-3 visa category; and (2) is eligible to be granted lawful permanent resident status but for per country limits on visa availability. As of now, USCIS will continue to adjudicate H-1B extensions according to its longstanding practice under AC21.

DACA Phase-out Blocked by Federal Judge

U.S. District Judge William Alsup has issued a preliminary injunction barring the Trump Administration from turning back the DACA program. Alsup determined that DACA recipients would suffer irreparable harm if the administration moved forward with plans to terminate the program prior to the case being resolved. This means that the DACA program will continue, and individuals already approved for DACA protections and work permits will be allowed to renew them before they expire. However, individuals that have never received DACA protections are no longer permitted to apply.

The DACA program allows certain individuals who came to the U.S. as children to request consideration of deferred action for a period of two years, subject to renewal. If approved, a DACA recipient may remain in the U.S. and apply for work authorization. In September, President Trump ended this program. The government reasoned that DACA was illegal from the start, and that President Barack Obama exceeded his authority when he introduced the program in 2012. Therefore, allowing it to continue would put the administration at risk of getting sued. This rationale, however, served as a primary basis for Judge Alsup’s order. According to Alsup, determining the illegality of the DACA program is a quintessential role of the judiciary and not the executive. In other words, it is not up to the Trump administration to determine whether or not DACA is illegal.

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