Thursday, December 15, 2016


The USCIS recently finalized a new regulation to benefit high-skilled workers which will go into effect on January 17, 2017 – just three days before President-Elect Trump is inaugurated.  The regulation was purposely timed to precede the new Trump administration.  Opinions are mixed on whether the new regulation will stay in effect, or will be immediately revoked or rewritten when President Trump takes office.
Some important highlights of the regulation are:
·         New 60 Day Grace Period.  H-1Bs, L-1s, Es, TNs, and Os and their dependents will have a 60 day grace period in the event that the principal visa status holder loses his/her job.  The grace period will allow these nonimmigrant visa holders to remain in the US and find a new job.  The 60-day grace period may be provided to an individual only once per authorized validity period.  An individual may be provided other such grace periods if he or she receives a new authorized validity period in one of the eligible nonimmigrant classifications. 
·         Flexibility for H-1B licensed occupations.  The USCIS will approve H-1B petitions for a validity period of up to one year where the applicant can prove that the H-1B employee does not have a US professional license due to the State’s requirement of a social security number, US employment authorization, or a similar technical requirement.  This has been USCIS policy, but is now officially law.   Unfortutnly, the USCIS still has much discretion in this area to interpret local state licensure law.
·         EAD extensions. An EAD will automatically be extended for 180 days, as long as an EAD extension was filed before the expiration of the current EAD.  This will provide needed certainty of continued work authorization.
·         Cap-Exempt Employers. The new rule reworks the H-1B cap-exempt employers rule for employers who are affiliated with an institute of higher education in two ways. 
o   DHS is replacing the term ‘‘primary purpose’’ with ‘‘fundamental activity.”  This is a less-restrictive standard than the current “primary purpose” rule.  Going forward, ‘‘a fundamental activity’’ of the nonprofit entity must be to directly contribute to the research or education mission of the institution of higher education.

o   A non-profit that has a formal written agreement that establishes an “active working relationship” with a University, no longer has to have shared ownership and control. This is also a lesser standard than at present.

·         Retention of I-140 in almost all situations.  This new rule clarifies existing USCIS policy that allows Beneficiaries to generally retain their I-140s even if the prior employer revokes the I-140.  This will allow these Beneficiaries to (i) recapture the I-140 priority date in future green card applications and (ii) take advantage of spousal work authorization rules without fear of an underlying I-140 revocation.

Monday, December 12, 2016


The Department of State has just issued the January 2017 Visa Bulletin.  This is the fourth Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

January 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

All Charge-
Areas Except
Those Listed

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  For Consular processing cases an August 2016 date is effectively Current.

China:   The China EB-2 date moved up about one month. The China EB-3 date progressed three months.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India had another impressive progression from last month, moving forward two months.  EB-3 stayed the same unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another seven weeks.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just four months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

Monday, December 5, 2016


President-elect Trump has spent much of the last few weeks vetting potential cabinet members.  Many of the higher profile positons have been named, such as Attorney General (Alabama Republican Senator Jeff Sessions) , Secretary of Defense (Ret. Gen. James Mattis), and UN Ambassador (South Carolina Republican Governor Nikki Haley).  It is expected that he will name a Secretary of State shortly.

The President-elect has not yet tipped his hand on who will be the Secretary of the Department of Homeland Security.  The DHS secretary positon is important because this positon sets DHS policy interpretations for H-1Bs and other employment-based nonimmigrant visas and employment-based green cards.

Two candidates seem to be leading the race to be Secretary of the Department of Homeland Security: Kansas Secretary of State Kris Kobach and Texas Rep. Mike McCaul.  The betting markets have Kobach slightly ahead.  While the betting markets are good indicators, they are not guarantees of future outcomes

Rep. McCaul probably would be the better choice for employment-based immigrants and employers.  In the mid-2000s, Rep. McCaul co-sponsored and supported several bills aimed at increasing the H-1B cap and increase employment-based green cards.  On the other hand, many immigration hardliners favor Kobach