USCIS and DOL Should Grant H-1B Petitions and LCAs for 6 Years

Summary: U.S. Citizenship and Immigration Services (USCIS) should amend its regulations to grant H-1B status for up to 6 years, and the Department of Labor (DOL) should restart granting labor condition applications (LCAs) for up to 6 years. The H-1B program grants status to foreign workers who are “coming temporarily to the United States to perform services . . . in a specialty occupation” or as a fashion model. [1] While the workers may be “coming temporarily,” Congress has recognized that an employer’s need for an H-1B worker may last several years. The Immigration Act of 1990 has authorized H-1B workers to receive status up to 6 years, [2] and the American Competitiveness in the 21st Century Act has permitted extensions beyond that period if the worker is following the process to obtain permanent status. [3] Even though the law envisions employment of at least 6 years, DOL and USCIS regulations limit LCA and petition approvals to no more than 3 years. [4] Filing for an extension after 3 years is an unnecessary and expensive burden. Employers and workers suffer unjust costs and potential delays, and USCIS and DOL are burdened with additional reviews of materials that they have already reviewed and approved. In 2020, H-1B workers and employers had to file more than 320,000 extension requests. [5] The 3-year limit can impose other logistical problems. Doctors who change status from J-1 to H-1B status must receive a waiver of the requirement to return to their home country and must commit to work for a full 3 years in a medically underserved area. [6] If the LCA, petition, and actual employment periods do not perfectly align down to the day, the doctor must seek an H-1B extension to finish the 3-year J-1 waiver requirement. Because the doctors commonly want to leave their current employer as soon as the waiver requirement is complete, some employers simply refuse to file an H-1B extension on their behalf, while others extract further commitments to work for longer periods than the law requires in exchange for sponsorship. This is unfair to workers who are trying to fulfill the legal requirements. DOL and DHS have never affirmatively justified the three-year limit on LCAs and petitions, and DOL previously permitted longer approvals. In 1991, DOL issued regulations implementing the Immigration Act of 1990 that authorized a labor condition application for the period of employment up to 6 years. [7] But in 1994, DOL reduced the validity period to no longer than 3 years. [8] DOL’s only justification was that INS regulations granted petitions for no more 3 years. DOL stated in its final rule, “While the Department is mindful of the concerns expressed by commenters opposed to the proposal, the need for uniformity in the DOL and INS administration of the program and avoidance of confusion among H-1B employers and nonimmigrants outweigh any potential burdens.” Yet INS regulations implementing the Immigration Act of 1990 provided no justification for the 3-year limit at all. [9] It just carried over the same language from the pre-1990 H-1 category regulations. Those regulations had established the 3-year limit because INS felt that it needed to define the meaning of the phrase “coming temporarily” in the definition of an H-1 worker in the absence of any congressional guidance on the issue. From 1952 to 1984, the INS had imposed 1-year limit, but it expanded authorizations to 2 years in 1983 and 3 years in 1987. [10] In its proposed rule in 1983, INS stated: H-1B extension requests are still “routinely granted” for “the vast majority” of applicants (94 percent in 2020), [12] and extension approval rates will increase even more after USCIS’s April 2021 policy manual update that instructs officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts. [13] In other words, the same facts as those in 1983 would justify increasing petition validity to 6 years, except today 6 years would have an underlying statutory basis. Indeed, there is no longer any basis for defining “coming temporarily” to mean less than six years now that Congress has explicitly stated otherwise. Thus, Congress has overturned the original basis of USCIS’s 3-year petition limit, and DOL has already stated that the 3-year limit for LCAs was only necessary because of INS’s regulation, while acknowledging it could impose burdens on applicants and the agency. For these reasons, USCIS should replace the 3-year limit on initial H-1B petition approvals with a 6-year limit, and DOL should revert to its earlier regulation allowing a 6-year approval of LCAs. This comment was submitted to USCIS's federal register request for comments on improvements to the legal immigration system. [1] 8 U.S.C. 1101(a)(15)(H)(i)(b) (2018).