Wednesday, May 27, 2015


U.S. Citizenship and Immigration Services (USCIS) recently announced it received approximately 233,000 H-1B petitions for the 2016 H-1B CAP filing. This figure includes both regular H-1B cap-subject petitions and H-1B petitions filed for the advanced degree exemption. Not surprisingly, this is the largest number of H-1B cap-subject petitions ever received. From a numbers standpoint, we can expect about 36% of the H-1Bs will be accepted and 64% will be returned.

Since more than half of the petitions are returned, U.S. employers must seek alternative visa options to the H-1B program. In this three–part series blog post, we will discuss in detail the available alternatives. Each of these visas has specific legal requirements that the employer and employee must meet to qualify. The options discussed should be considered on a case by case basis, to determine the best fit for the employer and employee.

In the first blog of this three-part series, we discuss the options available to F-1 student visa holders including continued employment under STEM OPT or returning to pursue a higher degree. 

Optional Practical Training (OPT) including STEM OPT

Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under the current rules, an F-1 student can be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies. Certain science, technology, engineering and mathematics (STEM) degree holders may be eligible for an additional one time 17 month extension of OPT time. To be eligible for the STEM OPT, the attained degree must be one of the STEM Designated Degree Programs (see STEM Designated Degree Programs) to determine if the degree is eligible and the employer must be registered with the government's "E-Verify" Program.
Higher Degree Level

An F-1 student can enroll in a new, higher degree-seeking program at a SEVIS certified university. Note that students may be authorized up to a total of 12 months of full-time practical training at each educational level (e.g., undergraduate, graduate and post-graduate). The student can also be authorized for Curricular Practical Training (CPT) at each new degree level. The CPT option should be exercised with caution and discussed by the student with the university’s designated school official. In a more recent trend, MU noticed the USCIS narrowly focus on F-1 students and whether the student maintained status during period(s) of authorized employment such as CPT.

In the second blog of this three-part series, we will discuss the H-1B CAP exemption options including quota requirements, who qualifies and how some states have designed innovate ideas to take advantage of this option. 

Friday, May 22, 2015


The USCIS has just released Guidance on its webpage further clarifying the Simeio Solutions case from April 2015. 

The most impactful part of the Guidance is that the USCIS is now requiring all H-1B employers to file an H-1B amendment for employees who have moved their geographical location, even if that move happened before April 9, 2015, the date of the Simeio Solutions decision. 

Simeio Solutions holds that a new H-1B petition is required whenever an H-1B worker changes his geographical location, if that geographical change requires a new Labor Condition Application (LCA).  Typically geographical changes outside of a metropolitan statistical area require a new LCA. 

The USCIS previously implied that only relocations happening after the issuance of the April 0, 2015 Simeio Solutions decision.  This new interpretation reaches back in time, requiring all prior geographical moves to file amended H-1Bs.

Accordingly all MU Law clients are encouraged to fully review their H-1B roster and confirm that the H-1B employee’s current worksite matches the worksite listed on the employee’s I-129 petition.  If the H-1B employee’s current worksite does not match the worksite listed on the employee’s I-129 petition, then we should prepare and file an amended H-1B petition. 

Thankfully, the Guidance is giving all H-1B employers a 90 day grace period, until August 19, 2015, to comply with this latest Guidance interpretation.

The new USCIS Guidance also confirms existing safe harbors within the law.  An amended H-1B does not have to be filed when:

-The geographical move is within the same metropolitan statistical area.

-Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA.

-The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive.  

Wednesday, May 20, 2015


USCIS will temporarily suspend premium processing for all H-1B Extension of Stay petitions from May 26, 2015 until July 27, 2015.  USCIS will continue to premium process all other H-1B petitions during this period, such as petitions subject to the H-1B cap.  USCIS will refund the premium processing fee if:

-A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
-USCIS did not act on the case within the 15-calendar-day period.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

Tuesday, May 19, 2015


In AILA’s latest “Check-in with Charlie” Department of State’s Charlie Oppenheim explains that the Philippine retrogression is being caused by “heavy demand”.  He says that other categories such as Worldwide EB-2 and Other Worker EB-3 are also in great demand.

Because of this demand he does not expect that the Philippine EB-3 date will move forward at any time in Fiscal Year 2015 (Oct 1, 2014 – Sept 30, 2015).  The date may even cut-off this summer.  Charlie's phrase is "further corrective action".

There remains optimism that there will be a progression of Philippine EB-3 dates with FY 2016, which begins October 1, 2015.  From 2008-2014, barely any Philippine EB-3 visa applications were filed, mainly because of the recessed US economy.  It therefore stands to reason that any jump in dates that reaches 2008, will progress forward to 2014. 

Accordingly, MU Law expects that the Philippine EB-3 number will return to 2014 before the end of this year.  However if Philippine EB-3 demand continues the Philippine EB-3 number may eventually retrogress negatively, although it is too early to specifically estimate Visa Bulletin dates in calendar year 2016.

One note of interest from a recent DC Circuit case, Xie v. Kerry.  The DC Circuit told the DOS to clarify how it applies the Visa Bulletin.  The outcome of this remanded case could conceivably alter the way that the Visa Bulletin is compiled.

Thursday, May 14, 2015


Students with work authorization under OPT (optional practical training) whose H-1B has been chosen under the cap are eligible for cap-gap work authorization.  Many students graduating from US colleges and universities with degrees in physical therapy, occupational therapy, speech language pathology, medical technology, and other allied health professions are eligible for OPT and work on OPT after graduation.   

When the student is approved for OPT, the student receives an employment authorization document (EAD).  This is a plastic card, much like a driver’s license, which shows the student’s photo and biographic information.  An OPT EAD Card is pictured here:

The validity dates of the OPT work authorization are listed near the bottom of the card.  In the case above, the student’s OPT work authorization expires on July 14.  Assuming this student’s H-1B petition has been selected under the H-1B cap, the student is eligible to apply for cap gap work authorization to extend his OPT work authorization from July 15 to October 1 when the H-1B begins.

The cap gap extension is not automatic.  The student should present the H-1B receipt notice showing his/her H-1B has been selected to the international student office at his/her school.  The school will issue a new I-20 to the student showing the OPT has been extended to October 1.  Employers should use this new I-20 to re-verify the student’s I-9 work authorization through October 1. 

Tuesday, May 12, 2015


The Department of State has just released the June 2015 Visa BulletinThis is the ninth Visa Bulletin of the 2015 Fiscal Year.  

The retrogression of the Philippines EB-3 continues.  To insure that no Philippine EB-3 visas are issued, the Department of State has again moved the Philippine EB-3 back, this time to January 1, 2005.

This cannot be good news, although MU still believes that the dates will progress in the second half in 2015.  Please read our blog post from April 14, 2015 for deeper analysis on the state of the Philippine EB-3.  This  month's forthcoming Check-in with Charlie will also likely provide some insight. 

The news was much better for the other categories.  India EB-2 leaped ahead to October 1, 2008, which is a progression of almost six months.

India EB-3 only moved up one week to January 22, 2004.  All Other EB-3 moved into February 15, 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved one full year to June 1, 2013 and EB-3 is now at September 1, 2011.  Both of these dates continue to progress positively.

Employment- Based
All Other

Monday, May 11, 2015


Earlier this year USCIS announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015. The full regulation was also published.  We are still awaiting a FAQ from USCIS, which was promised in the spring.  An MU Law FAQ is at the end of this blog post.

Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances.   (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140. 

H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization.  Ordinarily, I-765 Applications are approved in 90-120 days.  Accordingly, H-4 spouses who qualify should be able to begin working in September 2015.

Musillo Unkenholt H-4 FAQ

Can I file before May 26, 2015?
No.  The USCIS will not accept EAD applications until May 26, 2015.

How long will it take the USCIS to process the EAD Application?
Traditionally EAD Applications take 90-120 days until approval.

Can I work upon the filing of the EAD Application?
No.  The EAD must be approved?

Who qualifies for the new H-4 EAD card?
Certain H-4 spouses may file for the new H-4 EAD.  Children who hold H-4 status are ineligible for the EAD.

Which H-4 spouses may file for an EAD?
In order to decide if you qualify for the H-4, we must look to the underlying H-1B status holder.  The USCIS elected to apply the rule first set forth in Section 106 of AC21.  The H-1B worker must either:

A.  Hold an approved I-140, Petition for Alien Worker.  The approved I-140 does not need to be from his present employer; or
B.  Have a priority date that is at least one year old.  A priority date can be established by the filing of a PERM Application or a Form I-140.

May an H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year has passed since the filing of a PERM or I-140?
No.  The USCIS looks to the H-1B worker to meet A or B, above.  It is irrelevant if the H-4 meets A or B.

Are there any limitations on the work that I can perform on an H-4 EAD?  For instance, is there a prevailing wage?  Am I limited only to certain types of jobs?
No.  There are no such limitations.  You can work for any employer, at any rate (above minimum wage), and in any occupation.

What should I do if I want to file an H-4 EAD?

EAD Applications do not require an attorney’s assistance, although many people find it helpful to have an attorney assist in the process.  If you would like MU Law to help, please contact us.

Monday, May 4, 2015


USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in their computer-generated random process.   

With this announcement, USCIS acknowledges that H-1B receipt notices have been mailed.  Petitioners have probably not received all possible H-1B receipt notices because these Receipt notices are snail-mailed.

USCIS should shortly begin returning all H-1B cap-subject petitions that were not selected.  Due to the high volume of filings, the time frame for returning these petitions is uncertain.  Based on past years, MU Law believes that it may take longer than one month until all petitions are returned.

USCIS will issue an announcement once all the petitions have been returned.

Saturday, April 25, 2015


The International Centre on Nurse Migration (ICNM) was created by the Commission on Graduates of Foreign Nursing Schools (CGFNS) International and the International Council of Nurses (ICN). ICNM develops and promotes research, policy and information on global nurse migration. 

The ICMN has launched a website aimed at being a significant resource for research and information.  The website is  From their press release:

The new website features a bold, user-friendly web interface to easily access news, resources, and ICNM publications. eSource, a new website feature, offers a platform for new and experienced researchers to share articles, reports, papers or presentations on migration related issues with other researchers and the public.

Tuesday, April 21, 2015


AILA has discussed the Philippine EB-3 retrogression with Charlie Oppenheim, who is the Department of State’s Chief of the Visa Control and Reporting Division.  Mr. Oppenheim is the person at DOS who writes and produces the Visa Bulletin.

While he cannot speculate as to future dates, he “hopes to advance the cut-off date throughout the summer.”  This statement is consistent with MU Law’s April 14, 2015 blog posting on this issue.

USCIS demand for Philippine EB-3 visa numbers has increased.  The DOS says that 2,000 Philippine EB-3 visa numbers were requested in the six week period leading to the publication of the may Visa Bulletin, which is a massive increase from Fiscal Year 2014 (Oct 1, 2013 – Sept 30, 2014).  FY2014 saw a total of 3,275 Philippine EB-3 immigrant visas used.

MU Law expects that the Philippine EB-3 number will return to 2014 or even 2015 in the forthcoming months.  However if Philippine EB-3 demand continues the Philippine EB-3 number may eventually retrogress negatively, although it is too early to specifically estimate Visa Bulletin dates in calendar year 2016.

Monday, April 20, 2015


MU Law will be holding a free teleconference for our clients on April 22,
2015 at 2PM ET / 11AM PT.  Interested clients should email MU’s Annalisa
Smith, who can register you for the teleconference.

The agenda will include:

1.       H-1B cap update.

2.       Analysis of the new H-1B ruling, Matter of Simeio Solutions, which
mandates a new or amended H-1B petition whenever there is a change in the
employment location.

3.       What the new Visa Bulletin means for the Philippines EB-3

4.       Hot topics in PERM adjudications.

5.       Legislative update.

Wednesday, April 15, 2015


The US Embassy in Manila has waived the requirement for making an appointment for a visa interview for those who are affected by the retrogression (priority dates on or after July 01, 2007) and have never been interviewed. Once applicants have all the required documents and have completed the medical examinations at St. Luke's Extension Clinic, they may come to the Embassy's Immigrant Visa Check-in Counter on any workday between 7:30 a.m. and 8:30 a.m. from April 15, 2015 through April 28, 2015 for the visa interview.

More on their webpage:


The Department of State has just released the May 2015 Visa BulletinThis is the eighth Visa Bulletin of the 2015 Fiscal Year.  

The big news was the massive retrogression of the Philippines EB-3.  This was completely unexpected.  MU Law believes that the Philippine EB-3 retrogression is a temporary situation that should correct itself in the second half in 2015.  Please read our blog post from April 14, 2015 for deeper analysis on the state of the Philippine EB-3.

The news was much better for the other categories.  India EB-2 has progressed to April 15, 2008, although India EB-3 only moved up one week to January 15, 2004.  All Other EB-3 moved into January 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved to June 1, 2012 and EB-3 is now at May 1, 2011.  Both of these dates continue to progress positively.

Employment- Based
All Other

Tuesday, April 14, 2015


The May 2015 Visa Bulletin, released April 13, 2015, contained a major surprise for Philippines EB-3.  That visa number was retrogressed to July 2007.  While this was unwelcome news, MU Law has checked with several sources and it is our sense is that this retrogression is a temporary blip in immigrant visa processing for Philippines EB-3 applicants.  Because there are very few Philippine EB-3 applications between 2009-2013, MU Law believes that the Philippines EB-3 date will return to at least 2014, although this may not happen until Fiscal Year 2016 begins in October 2015.

Philippine EB-3 applicants have claimed many older priority dates from the high demand era of 2007-2009.  The Department of State had progressed the Philippine EB-3 number over the last year in an effort to spur these older applicants into filing their immigrant visa applications.  The retrogression is recognition that this effort to spur older immigrant visa applicants has worked.  The DOS now has had to tap on the breaks in order to process these older immigrant visa applications. 

MU Law expects that the Philippines EB-3 number will remain in 2007 for the June 2015 Visa Bulletin.  Because July is the start of the fourth and final fiscal quarter, the July 2015 Visa Bulletin may include a progression of the Philippine EB-3 date if overall demand for immigrant visas is low.  It is common for the fourth fiscal quarter to include dramatic improvements in visa bulletin dates.  For example, the Philippines EB-3 number advanced from November 07 (May 2014 Visa Bulletin) to January 09 (July 2014 Visa Bulletin) to April 2011 (September 2014 Visa Bulletin).

With the start of the next fiscal year (FY2016) in October 2015, the DOS should progress the Philippine EB-3 date to 2014.  The DOS will then steadily increase the date throughout FY2016, perhaps even making the Philippines EB-3 date current early in FY2016.

Monday, April 13, 2015


U.S. Citizenship and Immigration Services (USCIS) has just announced that it has received nearly 233,000 H-1B petitions during the April 1-7 filing period.  This figure includes both regular H-1B cap-subject petitions and H-1B petitions filed for the advanced degree exemption.  This is the largest number of H-1B cap-subject petitions ever received.  About 36% of the H-1Bs will be accepted and 64% will be returned. 
Earlier today, USCIS used a computer-generated random selection process, or “H-1B lottery,” to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. 
It is expected that it will take until mid-May before the H-1B lottery winners and losers are notified.  USCIS will begin premium processing for H-1B cap cases no later than May 11, 2015. 

Thursday, April 9, 2015


In a dramatic change ignoring 20 years of past precedent, the
USCIS' Administrative Appeals Office has decided that a new H-1B
petition must be filed every time an H-1B employee changes worksites, if
the new worksite is outside of the original metropolitan area.

Effective immediately all MU Law client-employers must file new or amended
H-1B petitions to protect these H-1B workers.  This will dramatically and
negatively change the process for many H-1B employers, especially those
employers in the staffing and consulting industries.  These industries
should expect to spend additional time and cost preparing and filing
previously unnecessary H-1B amendment petitions.

The AAO decision is titled, Matter of Simeio Solutions, LLC.

Tuesday, April 7, 2015


Congratulations! MU's Maria Schneider has been nominated for the Cincinnati Bar Association's Young Lawyer Section Professionalism Award. This award honors the YLS member who best demonstrates respect toward colleagues, his or her clients, and the judiciary. The recipient of this award is an individual who reveres the legal process and all who are involved in it and encourages others to do likewise.

Friday, April 3, 2015


The USCIS has proposed regulations that will allow H-1B1, CW-1, and E-3 visa holders to have dual intent.  The proposed regulation will also grant extended work authorization to these visa status holders who timely file their visa status extension petitions.  These changes will bring these three categories into harmony with similar employment-based visa status programs, such as the H-1B and the L-1.

Allowing dual intent will remove an unnecessary legal headache when these visa status holders apply for permanent residency.  Currently, H-1B1, CW-1 and E-3 visa status holders must be extremely careful when preparing their green card petitions or risk running afoul of the immigrant intent rule.  Strictly speaking, these visa status holders cannot intend to file for US Permanent Residency.

Granting extended work authorization is also a welcome for these visa status holders.  Under the current interpretation these workers were forced to stop working unless their visa status extension was approved prior to the expiration of the initial visa status.  When the new rule is finalized, those in H-1B1, CW-1, and E-3 visa status will be allowed to work during the pendency of their visa status extension petition, even if the extension petition is not approved before the expiration of the prior status.  This work authorization is for 240 days, per 8 CFR 274a.12(b)(20).

These visa categories were all established in the mid-2000s.  The H-1B1 provides an H-1B-like visa status for Singaporean and Chilean nationals.  The E-3 functions similarly for Australian nationals.  These visas were approved by Congress when trade deals were struck with these three countries.  The advantage of these visas is that they are not subject to the H-1B cap.  There are quotas for these categories, although none of the quotas have veer been reached.

The CW-1 is transitional visa used for foreign nationals seeking to enter the Commonwealth of the Northern Marianas Islands.  The CW-1 visa was set to sunset in 2014, but recent legislation extends the transitional visa until December 31, 2019.

Healthcare workers who work in occupations that require at least a Bachelor degree may qualify for these visas.  Typically we see these visas used by Physical Therapists, Occupational Therapists, Doctors, Pharmacists, and Speech Language Pathologists.

Tuesday, March 31, 2015


One of internationally-trained Physical Therapists biggest headaches is equating their foreign college degrees to US college degrees.  With the aim of curing this headache, CGFNS has recently launched e-Coach Learning Service.   

The new program helps internationally educated health professionals by providing the resources necessary to help meet the requirements as specified in the assessment tool by outlining the courses needed to remediate the educational deficiencies identified on their Coursework Tool Evaluation and Summary Statement.

Coursework Tools include the Federation of State Boards of Physical Therapy (FSBPT) Coursework Tool for Foreign-Educated Physical Therapists and Physical Therapist Assistants (CWT) and the CGFNS Education Comparability Tool (ECT).

The service is available through CGFNS’ webpage.

Friday, March 27, 2015


Senators and Congressmen have a long history of attaching pet amendments to budget and funding bills.  They know that these bills are “must pass” legislation, meaning that Congress will certainly pass a budget or else the entire government would shut down.  Since budget and funding bills are must pass, prized amendments get approved without going through the usual route, working their way through subcommittees and full committees.  This year several odd amendments were offered.

Sen. Hatch (R-UT) offered an amendment that sought to allow the conference committee to raise the H-1B cap, increase STEM visas, raise the green card cap, and increase the H-1B fee.  Sen. Grassley (R-IA) sought the exact opposite.  He hoped to restrict H-1B usage.  Neither amendment was successful.