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United States – Update on Extensions for H-1B Holders, Working Spouses

US – Update on Extensions for H-1B Holders

This report covers recent U.S. developments surrounding the H-1B visa program.

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Flash Alert 2018-014

A primary objective of the Trump Administration has been to protect the U.S. labor market for Americans and potentially create more jobs for U.S. workers.  Many of President Trump’s goals were set out in his “Buy American, Hire American” Executive Order signed in April 2017.1  

In December 2017 and January 2018, press reports2 indicated that the U.S. Department of Homeland Security (DHS) was considering a reinterpretation of existing law to sharply limit H-1B extensions beyond a worker’s first six years in H-1B status.  This policy seems consistent with the administration’s belief that the H-1B program may be negatively affecting the job prospects of U.S. workers, and that if H-1B workers left the U.S., it would potentially create opportunities for American workers.  However, apparently in the face of criticism from the business community and advocacy organizations, the administration subsequently disavowed that it was considering this proposal.  

WHY THIS MATTERS

The proposed approach would likely have resulted in certain H-1B employees leaving the country due to their inability to extend their H-1B status, which would have implications for families, children in school, and employers with such visa-holding employees.  This would likely have caused considerable disruption and instability for both visa holders and their employers.

Additionally curtailing the ability of spouses of H-1B visa holders to seek employment, could affect an employee’s decision to take an assignment to the United States and could frustrate U.S. employers’ efforts to achieve their business goals. 

Latest Developments

Stepping Back from Rescinding Policy of Extensions of H-1B

Initial reports had suggested that the U.S. administration was seeking to limit H-1B extensions beyond a worker’s first six years in H-1B status.  However, as reported more recently by McClatchy, the USCIS chief of media relations told that news organization, “USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit…  Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”3 

Spouses of H-1B Visa Holders and Their Ability to Work Under Threat

In another H-1B development, the U.S. Department of Homeland Security had stated that it will end current regulations allowing H-4 dependent spouses of H-1B visa holders (awaiting permanent residence) to obtain employment authorization. 

The DHS said it intends to rescind that regulation.  The proposed rule terminating employment authorization for thousands of H-4 workers is scheduled to be announced in February, according to the regulatory agenda published by the Department on December 15.4 

KPMG NOTE

Although the current policy on extensions for H-1B visa holders remains unchanged, the recent actions taken by the Trump administration demonstrate that there continues to be skepticism around the H-1B program by policy-makers in the White House.  

The administration has previously expressed support for prospective legislation that would impose restrictions upon the H-1B program.  How the H-1B program may ultimately be reformed remains an open question.

KPMG Law LLP will continue to provide updates regarding both the administration’s and Congress’ approach to the H-1B program.

FOOTNOTES

1  To see the Executive Order on Hire American and Buy American (April 18, 2017), click here.

2  To access F. Ordoñez,  “DHS Weighs Major Change to H-1B Foreign Tech Worker Visa Program,” McClatchy online, December 30, 2017, click here.  Also, to access C. Da Silva, “H-1B Visa Rules: U.S. Lawmakers Oppose 'Draconian' Proposed Changes That Will 'Tear Families Apart’,” Newsweek online, January 5, 2018, click herePlease note that this is a 3rd party (non-governmental, non-KPMG) Web site.  Provision of this URL does not represent an endorsement by KPMG Law LLP

Also, to access F. Ordoñez, “Under Pressure, Trump Team Backs Off Proposal to Cull Foreign Tech Workforce,” McClatchy online, January 8, 2018, click here.  Also, to see T. Hatmaker, “H-1B Visa Extensions for Workers Waiting on Green Cards Are Safe for Now,” TechCrunch (online), January 9, 2018, click herePlease note that this is a 3rd party (non-governmental, non-KPMG) Web site.  Provision of this URL does not represent an endorsement by KPMG Law LLP.

3  To access F. Ordoñez, “Under Pressure, Trump Team Backs Off Proposal to Cull Foreign Tech Workforce,” McClatchy online, January 8, 2018, click here.  Also, to see T. Hatmaker, “H-1B Visa Extensions for Workers Waiting on Green Cards Are Safe for Now,” TechCrunch (online), January 9, 2018, click herePlease note that this is a 3rd party (non-governmental, non-KPMG) Web site.  Provision of this URL does not represent an endorsement by KPMG Law LLP.

4  See DHS “Fall 2017: Statement of Regulatory Priorities.”  See DHS/USCIS published Rule “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.”

* Please note that KPMG LLP (U.S.) does not provide any immigration services.  However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.   

The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

© 2018 KPMG LLP, a Delaware limited liability partnership and the U.S. member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.

Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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