H-1B visa approvals should be for six years, suggests CATO Institute’s David Bier

Indians, especially those from the technology sector, who are the major beneficiaries of the H-1B non-immigrant visa program, are well aware of the challenges associated with seeking a visa extension. It means an additional cost for the sponsoring employer and anxiety for the visa holder.
Recently under the Biden administration, the United States Citizenship and Immigration Services (USCIS) has instructed its officers to defer to previous approvals when extending visas, such as the H-1B work visa.
In short, USCIS is reverting to its earlier long-standing guidance issued in 2004. The Trump administration had revoked this guidance and required that each visa extension be treated as a new application. This had led to a surge in requests for additional documentation (known as Requests For Evidence – RFEs) which increased administrative costs for sponsoring employers and led to delays. Or in other instances, there was an outright denial of visa extensions on various grounds.

But much more can be done to improve the legal immigration system. In response to invitations to the public to submit their suggestions, David J. Bier, a research fellow at the CATO Institute, said, “The USCIS should replace the three-year limit on initial H-1B petition approvals with a six-year limit, and the Department of Labour (DOL) should revert to its earlier regulation allowing a six-year approval of the labour condition applications.” The laws permit extension beyond six years only if the H-1B visa holder is following the process of obtaining a permanent status (green card).
In his submission to the USCIS, Bier added, “Even though the law envisions employment of at least six-years, DOL and USCIS regulations limit LCA and visa petition approvals to no more than three-years. Filing for an extension after three 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 fiscal 2020, H-1B workers and employers had to file more than 320,000 extension requests.”
A review of the USCIS data shows that of the 3.19 lakh H-1B visas issued to those born in India (which is 74.9 per cent of the total H-1B visas issued during the fiscal year ending September 30, 2020), 2.45 lakh were approvals for visa extensions.
In the backdrop of the recent policy manual update, which calls upon immigration officers to defer to previous approvals when extending visas, Bier explains that there is no longer any basis for defining “coming temporarily” to mean less than six years.