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    by , 01-04-2018 at 04:09 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    In what would be a direct attack against Indian H-1B workers, McClatchy reports that the Trump administration is considering an Executive Order or Memorandum that would eliminate the ability of H-1B workers with long-pending green card cases to extend their H-1B status beyond 6 years. For the reasons outlined in this blog, MU Law believes that while the Trump Administration may attempt this change in interpretation, they would be unsuccessful once challenged in court.


    In the 1990s H-1B status was limited to 6 years. After 6 years the H-1B worker had to exit the US, even if the H-1B worker's green card application was being delayed for reasons outside of their control, i.e. retrogression or processing delayed at INS (the predecessor to the USCIS). Congress recognized this problem and solved it with the American Competitiveness in the 21st Century Act (AC21).

    AC21 includes two provisions that allow H-1B extensions beyond 6 years. These provisions, Sections 104 and 106, are only available to H-1B workers who have started the green card process. The sole purpose of these two provisions is to allow H-1B workers to extend their H-1B beyond 6 years.

    Section 104 says that the Attorney General (now Secretary of the Department of Homeland Security) “may” extend an H-1B worker’s status beyond 6 years if the H-1B worker is the Beneficiary of an I-140 petition. The USCIS can approve these extensions in increments of no more than 3 years.

    The other important provision, Section 106, says that the USCIS “shall” issue one-year H-1B extensions to H-1B workers who are either:

    (1) the Beneficiary of a PERM application that was filed more than 1 year earlier; or

    (2) the Beneficiary of an I-140 petition that was filed more than 1 year earlier.

    Again, the entire purpose of Sections 104 and 106 is to allow H-1B workers to extend their H-1B beyond 6 years.

    Current Regulations

    In January 2017, the USCIS released regulations further clarifying the applicability of Section 106. These regulations clearly state that there are only four ways that the USCIS may not extend a 6+ year H-1B. None of the four exception criteria will apply to any H-1B holder with an approved I-140.

    (2) H-1B [extensions beyond 6 years] may be granted in up to 1-year increments until either the approved permanent labor certification expires or a final decision has been made to:

    (i) Deny the application for permanent labor certification, or, if approved, to revoke or invalidate such approval;

    (ii) Deny the immigrant visa petition, or, if approved, revoke such approval;

    (iii) Deny or approve the alien's application for an immigrant visa or application to adjust status to lawful permanent residence; or

    (iv) Administratively or otherwise close the application for permanent labor certification, immigrant visa petition, or application to adjust status.

    See: 8 CFR 214.2(h)(13)(iii)(D)(2).

    Mistaken Interpretation of Sections 104 and 106

    The McClatchy article and several other blogs and news stories point to the “may” language in Section 104. Their interpretation is that the “may” language gives the DHS Secretary unqualified discretion to deny 6+ year H-1Bs.

    While MU Law believes that this is a wrong interpretation of Section 104, and we will explain why in a future blog post, it is irrelevant because Section 106 provides no such discretion to the DHS Secretary.

    Simply put, under Section 106 the USCIS “shall” issue on-year H-1B extensions.

    Some have mistakenly interpreted AC21. The mistaken interpretation says that Section 106 does not apply if H-1B workers have an approved I-140. This interpretation is wrong. There is no qualifying clause that compels USCIS to only adjudicate green card petitions under Section 104.

    Some have pointed to the "surplusage canon" for the authority that Section 104 supersedes Section 106 when an H-1B worker has an approved I-140. The surplusage canon is a doctrine of statutory interpretation that says that if one clause in a state makes the other redundant, courts should use a reading to eliminate the redundancy.

    This interpretation is wrong for several reasons, but the primary one is that an interpretation where Section 104 supersedes 106, makes Section 106 essential.

    In other words, Beneficiaries have two ways to qualify: either Section 104 or Section 106. There is no "surplusage".


    MU Law wants to be clear. There is risk here. The Trump Administration has proven to be willing to issue unlawful executive orders. They may attempt to issue an unlawful executive order in this instance.

    Having said that, a federal court challenge would almost surely be successful because of the alternative nature of Sections 104 and 106.

    Latest news: highly-regarded immigration attorney Greg Siskind has just reported on Twitter that he believes that the Trump administration is only considering changing their interpretation of Section 104. Section 106 appears to be outside the scope of the Trump Administration’s considered review.


    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook, Twitter and LinknedIn.
  2. Trump Feuds With Bannon, but Not With Bannon's White Supremacist Immigration Agenda. Roger Algase

    The media are now consumed with stories about a forthcoming book by journalist Michael Wolff about Trump's White House which is reportedly full of unflattering personal and political stories about the president and his family. These include among many other things, an alleged comment by former top White House advisor and Trump campaign manager Stephen Bannon to the effect that a meeting between two of Trump's closest family members and his former campaign director with some Russians was "treasonous".

    Predictably, an infuriated President has lashed out at Bannon, stating that the latter has "lost his mind" and that he had nothing to do with Trump's campaign success - something that has about as much truth as saying that the capitol of the United States is located in Jerusalem - or Tehran - would have.

    Trump's lawyers have also reportedly sent Bannon a cease and desist letter, just in case he did not already know that the president does not react kindly to criticism on any issue whatsoever. See:

    But while all the above may make good tabloid reading, it does not change the fact that on immigration policy, Trump and Bannon have always seen eye-to-eye on the basics, and that here have been few if any differences between them. More than that, Bannon, along with Stephen Miller, former aide to Jeff Sessions, now the Attorney General and formerly the Senate's most vocal immigration opponent, and Sessions himself, was by all reports a chief architect of Trump's policies seeking to reduce or cut off immigration from non-white parts of the world.

    Bannon is gone and now evidently out of favor with the president, at least for the moment. But Bannon's bigoted policies against immigration from Asia, the Middle East, Africa and Latin America remain - particularly in Trump's Muslim ban executive order - what is left of it - and Trump's assaults on refugees, family immigration and the Diversity visa.

    On January 25, 2017, only days after Trump took office as president, he issued executive orders suspending immigration by refugees, primarily from Syria and other parts of the Middle East, and the issuance of visas to all citizens of seven more than 99% Muslim countries (the first Muslim Ban order), Right Wing Watch wrote the following (quoting from a Washington Post article):

    "...the flurry of executive orders is 'widely seen inside the White House as a victory for the self-described populist wing of his inner circle - which includes chief strategist Stephen K. Bannon, attorney general nominee Jeff Sessions and top policy adviser Stephen Miller."

    The above article continued:

    "Bannon, as head of Breitbart News, was a key mouthpiece for anti-immigrant and especially anti-refugee propaganda, something he worked on closely with Sessions and Miller.,,Bannon called the influx of refugees and other migrants into Europe a 'Muslim invasion, and referenced the racist anti-immigrant book 'Camp of Saints'."

    (Links in above quote are omitted.)

    But Bannon's hostility toward non-white immigrants is not limited to refugees only. Bannon, along with Sessions, has also been associated with the white nationalist ideology of reversing the trend toward racial diversity in American society in general, and trying to undo immigration policies that enable immigration from non-white parts of the world:

    See nprpolitics:

    What is Steve Bannon and Jeff Sessions' Shared Vision for Remaking America?

    See also, NBC News:

    Analysis: Breitbart's Steve Bannon Leads the 'Alt-Right' to the White House

    Stephen Bannon is long since gone from the White House, and he has now joined the long list of people of all ideological stripes and views who have managed to become objects of Trump's ire, vituperation and, in Bannon's case as well as those of some journalists and publications, attempts to intimidate them from exercising their basic free speech rights.

    But the spirit of Bannon's often stated belief that immigrants from non-white parts of the world in general, and Muslim immigrants in particular, pose a threat to America's society and "culture" and should not be welcome in this country, lives on in Donald Trump's White House.

    Bannon's spirit and ideology live on, not only in Trump's Muslim and refugee ban orders, but also in his support for the RAISE Act and in his attempts to reduce or eliminate most family-based legal immigration and to abolish the Diversity Visa Lottery; as well has his attempt to make H-1B and other skilled immigration more difficult and complicated through his "Hire American" executive order.

    Bannon may, not without justification, feel abused by the White House now, but he can draw satisfaction from knowing that his agenda against the non-European immigrants whom he regards as so undesirable for America is still alive and well inside the Oval Office.

    Roger Algase
    Attorney at Law

    Updated 01-04-2018 at 12:52 PM by ImmigrationLawBlogs

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