Monday, January 29, 2018


The American Immigration Lawyers Association recently confirmed with the USICS Service Center Operations Directorate that the USCIS is not anticipating any procedural changes to the H-1B cap for the coming April 2018 filing season.  The USCIS confirmed they intend to follow the same procedure using for April 2017 filings this year and will not require any type of pre-registration for H-1Bs filings.

In addition, the USCIS confirmed that they do not anticipate premium processing will be suspended for non-cap H-1B petitions, including H-1B transfers, amendments, or extensions.  However, there may be a brief moratorium on premium processing for H-1B cap petitions filed in April 2018.

Musillo Unkenholt is hosting an H-1B Cap Webinar on January 31.  We will be discussing a variety of immigration issues, including present and forthcoming Trump administration policy changes. 

Tuesday, January 23, 2018


The DOS recently released its expected availability for the next several months.  Those dates are:

EMPLOYMENT-based categories (potential monthly movement)
Employment First: The category will remain “Current” for all countries for the next several months.
Employment Second: Worldwide: Current China: Several months India: Up to two weeks Employment
Third: Worldwide: Current China: Up to five months India: One to three months Mexico: Current Philippines: Up to one month

As we have previously mentioned, we believe that these projections may underestimate the progression of Consular Processed cases because the new I-485 interview-requirements may slow I-485 processing times.  If I-485 processing times do slow, these visas will not go unused. Instead, they will flow into the Consular Processed cases.  There will be no announcement of this phenomenon, it will just happen as a matter of legal process. 

Tuesday, January 16, 2018


The Department of State has just issued the February 2018 Visa Bulletin.  This is the fifth Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

February 2018 Visa Bulletin

Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

All Other  


MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.

China (mainland-born):  Both China EB-2 and EB-3 favorably progressed.  EB-2 improved by two months; EB-3 improved by five months.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.

India:  Both India EB-2 and EB-3 progressed.  EB-2 by 2 weeks and EB-3 by 4 weeks, which is about what we expect that the monthly progressions will be in FY 2018.  MU suspects that EB-3 will not progress at any notable rate until at least the India EB-3 date moves past the Visa Gate date of August 2007.

Mexico: Mirrors All Other in analysis.

Philippines: The Philippine EB-3 date moved two weeks, which is its average in FY2018. Because of increased demand will expect slower progressions in the FY2018, progressing no more than 1-2 months per Visa Bulletin, unless I-485 processing times.  I-485 processing times may slow because of the new I-485 EB interview requirement.  If EB I-485 interview times slow, it will cause the DOS to free up more visas for Consular Processing petitions.

Tuesday, January 9, 2018


McClatchy reports that the Trump Administration has backed down from a threat that would have eliminated the ability of H-1B workers with long-pending green card cases to extend their H-1B status beyond 6 years.  They had previously reported that the Trump Administration was considering the change to H-1B extensions.

In a recent MU Law blog, we outlined the reasons that such a policy change was contrary to law.  We explained that The Trump Administration would have lost if challenged in court.  While Section 104 of AC21 might provide arguable cover for a Trump policy change, Section 106 of AC21 could not have been changed.  Therefore any policy change to Section 104 would have simply resulted in USCIS granting H-1B extensions in one-year increments under Section 106.

McClatchy quotes an unnamed USCIS official who confirms our analysis and the analysis of many members of the business immigration bar:

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”

Thursday, January 4, 2018


In what would be a direct attack against Indian H-1B workers, McClatchy reports that the Trump administration is considering an Executive Order or Memorandum that would eliminate the ability of H-1B workers with long-pending green card cases to extend their H-1B status beyond 6 years.  For the reasons outlined in this blog, MU Law believes that while the Trump Administration may attempt this change in interpretation, they would be unsuccessful once challenged in court. 


In the 1990s H-1B status was limited to 6 years.  After 6 years the H-1B worker had to exit the US, even if the H-1B worker's green card application was being delayed for reasons outside of their control, i.e. retrogression or processing delayed at INS (the predecessor to the USCIS).  Congress recognized this problem and solved it with the American Competitiveness in the 21st Century Act (AC21). 

AC21 includes two provisions that allow H-1B extensions beyond 6 years.  These provisions, Sections 104 and 106, are only available to H-1B workers who have started the green card process.  The sole purpose of these two provisions is to allow H-1B workers to extend their H-1B beyond 6 years.

Section 104 says that the Attorney General (now Secretary of the Department of Homeland Security) “may” extend an H-1B worker’s status beyond 6 years if the H-1B worker is the Beneficiary of an I-140 petition.  The USCIS can approve these extensions in increments of no more than 3 years.

The other important provision, Section 106, says that the USCIS “shall” issue one-year H-1B extensions to H-1B workers who are either:

(1)    the Beneficiary of a PERM application that was filed more than 1 year earlier; or
(2)    the Beneficiary of an I-140 petition that was filed more than 1 year earlier.

Again, the entire purpose of Sections 104 and 106 is to allow H-1B workers to extend their H-1B beyond 6 years.

Current Regulations

In January 2017, the USCIS released regulations further clarifying the applicability of Section 106.  These regulations clearly state that there are only four ways that the USCIS may not extend a 6+ year H-1B. None of the four exception criteria will apply to any H-1B holder with an approved I-140.

(2) H-1B [extensions beyond 6 years] may be granted in up to 1-year increments until either the approved permanent labor certification expires or a final decision has been made to:
    (i) Deny the application for permanent labor certification, or, if approved, to revoke or invalidate such approval;
    (ii) Deny the immigrant visa petition, or, if approved, revoke such approval;
    (iii) Deny or approve the alien's application for an immigrant visa or application to adjust status to lawful permanent residence; or
    (iv) Administratively or otherwise close the application for permanent labor certification, immigrant visa petition, or application to adjust status.

Mistaken Interpretation of Sections 104 and 106

The McClatchy article and several other blogs and news stories point to the “may” language in Section 104.  Their interpretation is that the “may” language gives the DHS Secretary unqualified discretion to deny 6+ year H-1Bs. 

While MU Law believes that this is a wrong interpretation of Section 104, and we will explain why in a future blog post, it is irrelevant because Section 106 provides no such discretion to the DHS Secretary. 

Simply put, under Section 106 the USCIS “shall” issue on-year H-1B extensions. 

Some have mistakenly interpreted AC21.  The mistaken interpretation says that Section 106 does not apply if H-1B workers have an approved I-140.  This interpretation is wrong.  There is no qualifying clause that compels USCIS to only adjudicate green card petitions under Section 104.  

Some have pointed to the "surplusage canon" for the authority that Section 104 supersedes Section 106 when an H-1B worker has an approved I-140.  The surplusage canon is a doctrine of statutory interpretation that says that if one clause in a state makes the other redundant, courts should use a reading to eliminate the redundancy.  

This interpretation is wrong for several reasons, but the primary one is that an interpretation where Section 104 supersedes 106, makes Section 106 essential.  
In other words, Beneficiaries have two ways to qualify: either Section 104 or Section 106.  There is no "surplusage".


MU Law wants to be clear.  There is risk here.  The Trump Administration has proven to be willing to issue unlawful executive orders.  They may attempt to issue an unlawful executive order in this instance.

Having said that, a federal court challenge would almost surely be successful because of the alternative nature of Sections 104 and 106.

Latest news: highly-regarded immigration attorney Greg Siskind has just reported on Twitter that he believes that the Trump administration is only considering changing their interpretation of Section 104.  Section 106 appears to be outside the scope of the Trump Administration’s considered review.