Wednesday, October 30, 2019


According to a new study by the National Foundation for American Policy, H-1B denial rates for cap-subject petitions has risen “from 6% in FY 2015 to 24% through the third quarter of FY 2019”.  Perhaps more amazing, 12% of extension/amendment H-1Bs are also being denied. 

This NFAP study updates prior NFAP H-1B studies from April 2019 and August 2019.  All of the NFAP data is collected from the USCIS Employer Data hub.

These denials have a grave impact on US healthcare, especially in rural areas who are increasingly relying on foreign-trained labor to augment incredible staffing shortage.  Among the most popular occupations for H-1Bs are: Physical Therapist, Occupational Therapists, and Medical Technologists.

MU will be holding a webinar on Wednesday November 13, 2019 at 2PM / 11AM PT. This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.  AGENDA AND REGISTER HERE

Monday, October 21, 2019



Most foreign educated nurses enter the US through Consular Processing.  Because of the new Presidential Proclamation that goes into effect on November 3, 2019, Musillo Unkenholt recommends that all US employers of foreign nurses -- and all Consular Processed immigrant visas -- immediately evaluate their corporate health insurance programs.  Because immigrants will now need to be enrolled in health insurance programs within 30 days of entry into the US, employer policies may need to be renegotiated.

MU suggests that employers take these steps:

First, review your health insurance policy to confirm that new immigrants will be immediately eligible to enroll in health insurance programs.

Second, draft a letter outlining the employer’s health insurance program for immigrants who are attending Consular Process interviews after November 3, 2019.

Third, continually follow up with these immigrants to make sure that they are enrolled in health insurance programs within 30 days of entry into the US.

Frequently Asked Questions About the new Presidential Proclamation on Health Insurance

If the employer’s program currently calls for new employees to enroll in more than 30 day will this be a problem under the new Proclamation?

Yes.  Immigrants must be offered the ability to be activated in their employer’s health insurance policy within 30 days of entry into the US.

Does the 30 day clock start from when the immigrant reports to work or from when the immigrant enters the US?

The 30 day clock starts from when the immigrant enters the US.  The employee's start date is irrelevant.

What if the immigrant wants to take a few weeks and visit family before beginning with our company?

It does not matter.  The immigrant must be enrolled in the health insurance program before the 30th day after entry to the US.

What if the immigrant fails to enroll in the health insurance program within 30 days?

The immigrant could conceivably be found to have committed immigration fraud, and could, theoretically, be deportable. There is no liability on the part of the employer if the employee fails to enroll.

Can I ask the immigrant to enroll in market-based state health insurance plan?

Yes.  But the market-based state health insurance plan must be unsubsidized by a US government entity.

Does an employer have to enroll spouses and children of dependents?

In order for spouses and children to be approved for their immigrant visa they must prove to the Embassy/Consular official that they will be enrolled in a health insurance plan within 30 days of entry into the US.  Therefore, the spouses and children must either be eligible for enrollment on the employer’s plan within 30 days of entry into the US or they must convince the Embassy/Consular official that they will be covered under alternative health insurance.

Some of my immigrants enter the US to activate their SSN and state license, but then exit the US after a few days.  These immigrants then re-enter the US after their SSN and state license is issued.  When do these immigrants need to be enrolled under a health insurance policy?

Even though these immigrants will be quickly leaving the US, it is still necessary that they prove to the Embassy/Consular official that they will obtain health insurance within 30 days of their initial entry.

Thursday, October 17, 2019


The Department of State has just issued the November 2019 Visa Bulletin. This is the second Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

November 2019 Visa Bulletin

Table A: 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 references are to Table A unless noted)

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: The EB-2 and EB-3 remain inverted, in spite of the fact that China EB-3 did not progress at all.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was no material progress in either category.  We expect very little progress in either category in future months.

Philippines: As we expected, EB-3 leapt forward almost 4 months.  We still find the implementation of the EB-3 priority date to be too conservative.  MU expects that this date will continue to rapidly move in the coming months, and could return to current in early 2020.

Wednesday, October 16, 2019


Don't forget to register for our free webinar happening Wednesday November 13, 2019 at 2PM / 11AM PT. We hope to see you there! Click the REGISTER link on the right to sign up!

Register Here

This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.  
Webinar Agenda:
1.   H-1B issues
·       Specialty Occupation
·       Availability of Work
·       Right to Control
2.   I-140 Issues
·       Bona Fide Offer
·       Ability to Pay
3.   I-485 Issues
·       Maintenance of Status
o   F-1 to Green Card
o   H-1B to Green Card
4.   Q&A


Tuesday, October 15, 2019


On Friday, October 11, 2019 three Federal Judges in three separate cases stopped the USCIS from implementing the new public charge rule, which included using the new versions of the I-485, I-129, and I-539 as well as the implementation of the new form I-944.  Until final decisions in these three cases are issued or the injunction is lifted, USCIS will accept the older versions of the forms. 

In addition, late last week, the Department of State created their own public charge rule to mimic the new USCIS rule.  According to the latest information, the Department of State rule will still go into effect on October 15, 2019 as planned.  Those obtaining their green card through an Embassy interview will likely need additional documentation to provide at the Embassy interview.  Consult with your MU attorney in this regard.

UPDATE: The State Department public charge rule will take effect tomorrow—but it won't be implemented until a new form is approved, per a @StateDept official via CBS News. 

CBS News:

Wednesday, October 9, 2019


On October 4, 2019, the President issued a proclamation stating individuals entering the US from abroad on a green card must now be covered by approved health insurance within 30 days of entering the US.  This new rule will take effect on November 3, 2019.

Approved health insurance includes:
  • An employer-sponsored plan
  • An unsubsidized plan offered in a US State’s individual market
  • A short-term plan effective for at least a year or until the foreign national plans to leave the US for extended travel
  • A catastrophic plan
  • A family member’s plan
  • A military healthcare plan, such as TriCare
  • A Medicare plan
  • Any other plan that is deemed adequate by the Secretary of Health and Human Services.

Applicants must be able to present evidence to the Embassy Officer reviewing their case that the applicant will have health insurance before the issuance of the visa to enter the US.

This new rule applies to those seeking entry to the US on a green card for the first time.  Children who are under the age of 18 and entering the US with their parents are exempt from this rule. 

This rule does not apply to those who have received a green card in the past and are returning to the US after a trip abroad.  This rule also does not apply to those entering the US on a nonimmigrant visa, e.g. H-1B, TN, L-1, for F-1.  

Friday, October 4, 2019


On August 14, 2019 the Department of Homeland Security (DHS) announced a new “public charge” rule; this rule will go into effect on October 15, 2019 and directly impacts all individuals applying for a green card. 

At this point the Trump Administration has only released a draft version of the new Form I-944.  USCIS has not yet released any final forms or documents.  Accordingly, we are advising clients to try and file as many cases before October 15 because it is impossible to say with certainty what the new forms will require.


A public charge is someone who is dependent on the government, through benefits programs.  The Trump Administration’s new rule changes the standard by the USCIS determines whether a foreign national is likely to become a public charge.  Under the previous policy, USCIS examined whether an intending immigrant was primarily dependent on public benefits.  Under the new rule, USCIS will examine whether immigrants are likely at any time to become a public charge, using a multi-factor test. 

USCIS is now required to consider a range of factors when making a determination if the foreign national visa applicant is likely to become a pubic charge.  These factors include:

a.   Receipt of a public benefit for more than 12 months in the aggregate within a 36 month period
b.   Age
c.    Health
d.   Family status
e.   Education and skills
f.     Assets, resources, and financial status

New Form I-944

A draft version of the form I-944, Declaration of Self-Sufficiency, has been released by the USCIS.  In addition to the I-944, new versions of the several other immigration forms required for green card applications, H-1Bs, and H-4s will be updated.  The USCIS has not yet published the final version of the I-944 and the other revised forms.

The draft version of the I-944 requires all green card applicants to provide detailed information about his or her household.  The applicant’s household includes anyone listed as a dependent on the applicant’s tax return and anyone for whom the applicant provides 50% or more support.  The form I-944 asks for:
·        The name, date of birth, and relationship to the applicant of each member of the household
·        The education and occupational skills for an applicant who does not have an approved I-140; for applicants who do have an approved I-140, the applicant must provide the I-140 receipt number
·        The income of the applicant and all household members
·        A list of any assets held by household members that can be converted into cash within 12 months, e.g. checking and savings accounts, stocks and bonds, retirement accounts, etc.
·        A list of any liabilities or debts held by household members, e.g. mortgages, car loans, credit card debt, unpaid taxes, etc.
·        The credit report and credit score of all applicants
·        The terms and type of health insurance policy held by each applicant
·        The application, receipt, or certification of public benefits for each applicant, including enrollment, disenrollment, and withdrawing of public benefits

The adjudicating Officer will review all of the above listed information when making a determination as to whether the green card applicant is likely to become a public charge.  At this time, it is unclear if all of the items listed above will be required of all applicants, even when the applicant’s income meets a certain threshold or the applicant has guaranteed employment in the United States because of an approved I-140.


Policy experts forecast that this rule will likely be applied inconsistently, cause fewer legal immigrants to enter the United States, and cause further delays in the processing of immigration applications by the USCIS.  MU will send additional information once the immigration forms have been finalized and greater clarity is provided by the USCIS.

Wednesday, October 2, 2019


The American Immigration Lawyers Association (AILA) has received reports of SEVP officers conducting site visits to confirm the details of students’ STEM OPT employment and that the Petitioner is in compliance with their attestations on the I-983.

Visits can be either random or based on a complaint. For random visits, SEVP officers have typically contacted the STEM OPT employee’s manager 1-2 days before the visit is to be conducted. For a complaint, there will likely be no notice given by the SEVP officer.

From reported visits, the visits generally last 1-2 hours at the STEM OPT worksite. According to the DHS’s website, the visits will address:

1.     How the salary of the STEM OPT employee is determined;

2.     Whether there are sufficient resources from the Petitioner to provide supervision and training of the employee; and

3.     Whether the Petitioner is maintaining an employer-employee relationship with the employee.

It is important to review your STEM OPT employee’s I-983 forms and ensure that the employer team (especially the manager listed on the I-983) and the employee are familiar with the details of employment and the training plan.