Department of State Shortens Validity of Temporary Visas for over 50 Countries

On July 17, 2025, NAFSA, a nonprofit policy advocate, released a report detailing the Department of State’s (DOS) recent actions to shorten temporary visa validity periods. DOS’s changes will affect multiple temporary visa types for nationals of over 50 countries.  

In most cases, DOS has shortened temporary visa validity to only 3 months and a single entry. In practice, this means applicants receiving a shortened visa must enter the US within 3 months of their visa issuance and will have to reapply for a visa before each entry to the US.

A full list of the more than 50 affected countries can be found in NAFSA’s report; the list includes Afghanistan, Cameroon, Ghana, Haiti, Iran, Nigeria, Sierra Leone, Uganda, Venezuela, and Zimbabwe.

With some variations, affected visa types include B, F, H, J, M, O, and P visas.

F visas are utilized by international students in the US. The H-1B visa is open to employees filling US positions that require Bachelor’s degrees, which include healthcare occupations such as Medical Technologists, Occupational Therapists, Physical Therapists, and even Registered Nurses.

Although DOS did not make an announcement of its sweeping temporary visa limitations, individual visa validity periods by country are updated on the DOS’s visa reciprocity website. Speak with an MU attorney if you have questions about your visa validity.

H-4 EAD ELIMINATION REGULATION TO BE ANNOUNCED SHORTLY

As we have mentioned several times, the Trump Administration is seeking to eliminate 90,000 lawful jobs by ending the H-4/EAD rule.  This rule, which was first passed in February 2015, provides work authorization to spouses of H-1B workers, provided that the H-1B worker has an approved I-140. 

USCIS sent the new regulation, "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization," to the Office of Management and Budget on February 20, 2019.  It is currently pending review. OMB is expected to publish a Notice of proposed rulemaking in the near future, although OMB has not released a timeline.  The publication of the notice will allow the public to offer notice and comment.  

After the notice and comment period, USCIS must review and consider the public’s comments, before publication of the final rule.  Unfortunately, it is not expected that the public’s comments will materially change the new rule’s core goal: the elimination of the H-4/EAD.

This needless attack against lawful workers is further proof that the Trump Administration is not at all interested in legal immigration, despite the President’s public statements.  The reality is that the President and his administration are only interested in harming immigrants: lawful and otherwise.

US DEPARTMENT OF LABOR (DOL) RELEASES NEW LABOR CONDITION APPLICATION (LCA)

Effective Monday, November 19, 2018, the DOL released a new LCA (Form ETA-9035) which must be used on all immigration filings going forward. A certified LCA must be included in immigration filings for H-1B, H-1B1, and E-3 status.  The DOL generally certifies an LCA approximately 7-10 days after submission of the LCA to the DOL.    

Certified and date-valid LCAs in the old format can still be used in immigration filings, provided the LCAs have unused slots in the appropriate filing category, e.g. new employment, continuation of employment without change, etc. 

For all immigration filings, the new LCA requires the legal business name of the end-client(s) as well as the street address of the worksite(s) where the employee will physically work.

For H-1B masters cap petitions, the new LCA requires:

o   The name of the institution that awarded the employee’s master’s degree;

o   The field of study in which the employee’s master’s degree was awarded;

o   The date on which the employee’s master’s degree was awarded; and

o   Documentation substantiating the employee’s master’s degree information.

MU’s employer checklists for H-1B, H-1B1, and E-3 filings have been updated to request this information from employers at case initiation. 

DECEMBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the December 2018 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

December 2018 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.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01JUL17	01SEP16	01SEP16	01JUL17
EB-2	C	01JUL15	01APR09	C
EB-3	C	08JUN15	01MAR09	15JUN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	08SEP15	22MAY09	C
EB-3	C	01DEC15	01JAN10	01AUG17

MU Law Analysis (all references are to Table A unless noted)

All Other, Mexico: As we expected, the EB-1 category moved several months. We expect continued steady movement in this category for All Other.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as All Other in the next few Visa Bulletins. China EB-2 moved two months, although EB-3 only advanced one week. We expect EB-3 to slightly outpace EB-2 in the next few Visa Bulletins.

India: The Indian EB-3 date moved two months, which was more than expected. There is a chance that EB-3 continues to move at this pace for the next few Visa Bulletins. We expect the slow/no progress to be standard for EB-2 in the first part of FY 2019.

Philippines: The EB-3 date again also only moved up by week, which is slower than we would have liked to have seen. While over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, we do not expect too much movement in the next few Visa Bulletins.

LAWSUIT ALLEGING HUMAN TRAFFICKING OF H-1B NURSES ALLOWED TO PROCEED AS A CLASS ACTION

As reported in the New York Law Journal, A Federal Judge will allow a group of Filipino H-1B nurses to continue their lawsuit against Sentosa Care as a “certified class.”  At issue was whether the nurses had to pursue their claims individually or whether they could proceed in one class action lawsuit.  By allowing the case to continue as a class, the lawsuit could lead to greater damage awards against Sentosa Care since it is generally easier for plaintiffs to pursue litigation together.  The plaintiff’s lawyer says that 200 H-1B nurses could now bring their claims.

The judge laid out the case in her decision.  The substantive issue is whether Sentosa’s pursuit of a damage clause in the employment contractual clause rises to the standard of violating the Trafficking Victims Protection Act.  The employment agreement entitled Sentosa to $25,000 in liquidated damages if the nurses left Sentosa’s employment prior to fulfilling the three-year contract. 

The nurses allege two claims:

1. Because the nurses were not paid the contractual wage from the time that they began working, the employment agreements were breached.  Therefore, Sentosa’s pursuit of the $25,000 violates several provisions of the TVPA.
2. Even if the agreements were not breached, the $25,000 itself is so far above Sentosa’s actual damages that pursuit of the $25,000 violates several provisions of the TVPA.  The judge notes that there is some evidence that Sentosa only spent a few thousand dollars per nurse.

Sentosa’s employment and recruiting practices have been the subject of lengthy litigation.  We will follow the case and report back as we hear anything.

USCIS WILL NO LONGER ACCEPT PPS FOR H-1Bs EXCEPT EXTENSIONS, CAP EXEMPT INSTITUTIONS

In an unexpected move (although all-too-common for an increasingly erratic agency), the USCIS will no longer accept Premium Processing Service (PPS) for all H-1Bs, except for H-1B extensions with the same employer or H-1Bs for cap-exempt institutions, such as Universities or research organizations.

Effective September 11, 2018, PPS will not be available for H-1B cap petitions and H-1B amendments.  The ban on PPS will continue until February 19, 2019. 

The justification for the ban on PPS is to reduce overall H-1B processing times.  

If you are asking yourself how eliminating a fee-based premium processing service will reduce processing times, you are not alone.  The PPS is supposed to pay for itself.  This is yet another example of an agency that cannot get out of its own way.

USCIS NTA MEMORANDUM IMPLEMENTATION DELAYED

On July 30, the USCIS announced that it will delay the implementation of a recent memo regarding the issuance of Notices To Appear (NTAs) to foreign national who fall out of status when their immigration petition is denied.  The issuance of an NTA initiates deportation proceedings.

On June 28, 2018 the USCIS issued a new policy memorandum which instructed USCIS Officers to initiate deportation proceedings for those foreign nationals’ whose immigration petition was denied after their I-94 card had already expired.  Generally, when the USCIS creates a new policy the USCIS delays implementation of the policy until a guidance memo can be issued.  The June 28, 2018 memo did not give a date specific on which the policy would be implemented, meaning it would be implemented immediately.

Today's announcement indicates the new NTA policy not be implemented until the USCIS guidance is issued.  The announcement also confirms that USCIS is not currently initiating deportation proceedings for those whose immigration petitions are denied after their I-94 cards expire.

For more information on this new policy please join us on Wednesday, August 1, for a teleconference on this new policy and other updates from the USCIS: REGISTER

TELECONFERENCE: STEM OPT AND THIRD-PARTY WORK-SITES

The USCIS has recently issued two new interpretations on the issue of STEM OPTs working at third-party client work-sites.  These interpretations have dramatic implications for those who continue to work at third-party client sites after August 9, 2018.
 ______________________________________

Please join MU Law for a teleconference on this issue.  The teleconference will be July 11, 2018 at 3PM ET.

Topics on the call will include:

• STEM OPT v. non-STEM OPT
• Examination of the current rules and the new rules.
• USCIS interpretation of a third-party client site.
• Unlawful presence v. Failure to Maintain Status

REGISTER HERE

The teleconference is free for MU Law clients and friends of the firm. We look forward to speaking with you!

USCIS FINISHES H-1B LOTTERY

The H-1B lottery has been completed.  USCIS has finished the data entry for all FY 2019 H-1B cap-subject petitions.  Musillo Unkenholt continues to see H-1B checks being cashed and continues to receive H-1B receipt notices in our mail.  Therefore H-1B cap-subject petitioners should not lose hope yet if they have not received an H-1B receipt notice.  We expected that we will continue to see H-1B receipts for the next two weeks.

After the final H-1B receipt notices are sent by USCIS, they will begin returning all H-1B cap-subject petitions that were not selected.  In past years it has taken USCIS 1-2 months to complete this process.  Musillo Unkenholt does not expect the final H-1B returns until late June or early July.

H-1B EMPLOYERS SUE USCIS TO STOP HARASSING EMPLOYER-EMPLOYEE RFEs

On May 1 a significant lawsuit was filed in federal court in New Jersey.  The Plaintiffs, three IT consulting companies, seek to overturn some of the most harassing parts of the USCIS’ policy against H-1Bs.

The legal issue is simple: USCIS is only allowed to enforce laws that are passed by Congress.  USCIS is not allowed to create laws.  The lawsuit alleges that the USCIS’ policy of seeking third-party contracts, vendor letters, itineraries, and endless details over employer-employee relationships are all outside USCIS’ authority.

Jon Wasden is the attorney who filed the case.  Jon worked at USCIS's Administrative Appeals Office and the Justice Department and has substantial experience in these issues. 

If your H-1B has been denied for these reasons, please let me know and I can put you in touch with Jon or you can visit his website.

DHS DIR. CISSNA CONTINUES THE ASSAULT ON H-1Bs

Earlier this month, USCIS Director Francis Cissna, in a letter to Sen. Grassley (R-IA), described a number of forthcoming policies aimed at restricting the H-1B.  Dir. Cissna’s policy changes hide behind fraud concerns.  The real target is reducing legal immigration.

The new restrictions that USCIS plans to unilaterally impose include:

• Rewrite the definition of “Specialty Occupation”.  USCIS will rewrite the definition of specialty occupation.  Under the current “bottom-up” approach, US employers decide who comes to America.  The agency’s “big government” rewrite will create more regulation, more USCIS officer discretion, and less accountability for USCIS officers.  These policies are being produced because the administration thinks that it knows who are the “best and brightest,” instead of the marketplace.

• Denying spouses from Working In The United States:  USCIS’ long-rumored plan to eliminate H-4 EADs was announced in the USCIS’ semiannual regulatory agenda.

• Ratcheting up third-party worksite H-1B denials.  Despite no objective evidence that fraud exists in third-party staffing situations, USCIS seeks to ask for additional evidence that it does not ask for in first-party worksite assignments.  This issue seems ripe for litigation. It seems inevitable that an H-1B employer will successfully challenge the Service’s overreaching requests in this area.

USCIS RECEIVES 190,000 H-1B CAP PETITIONS

USCIS announced that it received 190,098 petitions during the filing period, including petitions filed for the advanced degree exemption (compared to the 199,000 H-1B petitions received during the FY2018 filing period).

USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 44% of their H-1B cap filings to be H-1B cap winners.  Based on prior years, we will receive H-1B lottery winner receipts throughout April and May.  After that we will receive the H-1B lottery loser petitions.  Traditionally if you do not receive a winner receipt notice by June 1, you have probably lost the H-1B lottery.

H-1B CAP 2018 HAS BEEN REACHED

USCIS today that it has received more than 85,000-1B cap-subject petitions They did not specify how many H-1B cap-subject petitions were received.  We expect to know the overage within the next few weeks.  Last year, the announcement happened on April 17.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Amend the H-1B petition to notify the USCIS of the filing of a new LCA and/or geographic change in employment;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second, contemporaneous part-time H-1B position. 

WHICH US CITIES ATTRACT H-1B WORKERS?

The Pew Research Center has a new, fascinating study that shows the destination of H-1B workers.  The most surprising result is that the Bay Area attracts fewer H-1B workers than one might expect. 

From the study:

The San Jose, California, metro area, home of Silicon Valley, trailed the leading metro area on these measures, despite being home to some of the world’s most famous technology companies. The San Jose metro area had 22,200 H-1B approvals from fiscal 2010 to 2016, which amounted to two approvals per 100 workers.

The average H-1B worker earns $80,600, which is considerably higher than the average college-educated American, who earns $72,376.  In many Midwestern cities, it is impossible to make the case that H-1B workers are driving down salaries or that H-1B workers are saturating the supply of workers.

Metro Area	H-1B worker per 1,000 US workers	Avg H-1B Salary
Indianapolis	0.640	$71,700
Minneapolis	1.000	$90,500
Birmingham	1.240	$80,900
St. Louis	1.260	$84,700
Kansas City	1.260	$76,500
Denver	1.270	$91,300
Cincinnati	1.370	$70,200
Omaha	1.440	$90,400
Oklahoma City	1.470	$72,800
Columbus	1.760	$72,500

In all of these metropolitan areas, there are only 1 or 2 H-1B workers per 1,000 US workers, which is a minuscule percentage of the workforce.  As usual, the bluster around the H-1B program pales in comparison to the actual facts.

USCIS TO SUSPEND PPS FOR H-1B CAP CASES

USCIS will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018.

During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap.

USCIS’ press release says that this temporary suspension will help them reduce overall H-1B processing times in these ways:

-Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and

-Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark. 

Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap.  The H-1b cap is expected to be reached during the first week in April.

H-1B CAP SUPPLY AND DEMAND V. UNEMPLOYMENT RATE

In 2009, a mere 9,000 H-1Bs were received in the first month of H-1B processing.  It would be 264 days before the H-1B cap was reached.  In 2010, it took 300 days until the H-1B cap was reached.  In 2011, there were 236 days between the April 1, 2011 cap opening and the November 23, 2011 cap being reached.  Not coincidentally, the US employment rate from 2009-2011 ranged between eight and ten percent.

On the other hand, the H-1B cap was reached on the very first day in 2007, 2008, each year since 2013, mirroring the low unemployment rate.

The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries.

Why?  Because if H-1B visa labor was being used primarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates.  If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.

SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

1.                   These types of cases are subject to the H-1B cap:

• International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
• International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
• Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
• Prospective international employees currently living abroad.

2.                   These types of cases that are not subject to H-1B cap:

• H-1B amendments/extensions/transfers
• When the employee has been in H-1B status for less than 6 years
• Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
• MDs who have received a J-waiver of their 2 years foreign residency requirement.
• H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

3.                   Employees with a U.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs a Masters Cap H-1B lottery to determine 20,000 lottery winners.  All H-1B applicants who lose this lottery are then placed in the general 65,000 H-1B lottery.

4.                   Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery.  The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

5.                   An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

6.                We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to be abandoned.  If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

7.                   The employee’s proposed worksite may not change until the H-1B CAP petition is approved.  If the worksite changes the USCIS is inclined to deny the case.  If possible the H-1B cap petition should be upgraded via Premium Processing.  Upon approval of the H-1B, the employer can file an H-1B amendment.

H-1B CAP: PAST DEMAND AND 2018 DEMAND

This year’s H-1B filing date of April 1, 2018 is coming fast.  MU Law predicts that H-1B petitioners will file fewer than the 200,000 petitions that were filed last year.  

When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over twice as many H-1B petitions as there are slots available.

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

The H-1B is usually associated with IT positons.  Most of the H-1B slots are used by IT professionals.  Many healthcare professions also qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

International workers who are working in the U.S. on an H-1B visa with another H-1B employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 1, 2007
H-1B 2008 (FY 2009)	85,000	April 1, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 1, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015
H-1B 2016 (FY 2017)	85,000	April 1, 2016
H-1B 2017 (FY 2018)	85,000	April 1, 2017
H-1B 2018 (FY 2019)(projected)	85,000	April 1, 2018