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.
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