Monday, June 25, 2018


Because of two recent USCIS interpretive changes, Musillo Unkenholt LLC (MU Law) advises that STEM OPT workers do not work at third-party worksites under their SETM OPT work authorization until the USCIS issues better and clearer guidance on the issue. 

Working and training at third-party worksites is probably legal.  However, by working at the third-party worksite the STEM OPT trainee puts himself at risk for enormous negative immigration consequences, including a ten-year bar from entering or living in the United States.


Earlier this year, and without any warning or notice, the USCIS changed its webpage to include this key change:

the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

The USCIS’ justification for the third-party worksite prohibition is, apparently, because ICE (Immigration Customs Enforcement) would lack the authority to investigate at the third-party worksite. 

Curiously, ICE has not produced any guidance on this point.  ICE likely would be surprised to learn that they do not have the authority to investigate a worksite where it believed immigration fraud was being committed.

The website change alone is probably not good law.  There has been no regulatory change.  There has been no notice and comment period, something required for regulatory change.  The “ICE lacks investigative authority” justification for the prohibition against third-party worksites is weak.

If the only thing that USCIS had done was updated their webpage, then MU Law’s position might be that STEM workers could continue to work at third-party worksites, provided that the other qualifications of the program were being met, however, this is not the only change for F-1 students.


A brand new USCIS policy, effective August 9, 2018, says that F-1 students including STEM OPTs will now accrue “unlawful presence” “the day after he or she engages in an unauthorized activity.”  Accordingly, after August 9, 2018, the USCIS is expected to find that STEM OPTs working at third-party worksites are engaging in “unauthorized activity” and are therefore “unlawfully present”.

Even worse, a USCIS official can retroactively find that an F-1 student engaged in “unauthorized activity”.  A number of leading university administrators have made this point directly to USCIS Director James Cissna.

This is a massive change in long-standing USCIS policy.  Under the prior interpretation, an F-1 student or OPT did not accrue unlawful presence until an immigration judge said so.  Engaging in “unauthorized activity” meant that an F-1 worker “failed to maintain status,” which is a lesser finding.

The distinction between “failing to maintain status” and “unlawful presence” is enormous:
  • When someone fails to “maintain status” they must immediately leave the US but can ordinarily immediately reenter the US. 
  • When someone is “unlawfully present” for more than 180 days, they must immediately leave the US and are barred from reentering the US for 3 years.  When someone is “unlawfully present” for more than 365 days, they must immediately leave the US and are barred from reentering the US for 10 years

Consider this hypothetical scenario:

August 9, 2018 – STEM OPT continues to work at a third-party worksite

April 1, 2019 – STEM OPT worker files an H-1B cap petition

May 1, 2019 – STEM OPT worker’s H-1B cap cases is selected in the H-1B lottery

August 10, 2019 – STEM OPT worker receives an RFE from USCIS asking for proof that he has only engaged in authorized activity.

September 20, 2019 -  H-1B is denied.  USCIS finds that STEM OPT worker’s third-party work was “unauthorized activity”.  USCIS also finds that the STEM OPT worker was “unlawfully present” from August 9, 2018 until September 20, 2019, a period of more than 365 days.  Consequently, the STEM OPT worker must immediately leave the US and cannot reenter the US for 10 years.


At this time, MU Law recommends that STEM OPT workers are not placed at third party worksites unless comprehensive analysis is done regarding the viability of the assignment.  STEM OPT workers at third party worksites run the risk of 3 and 10 year bars from reentry into the US.  It is our hope that USCIS provides greatly clarity on these points and engages the public on the issue, rather than creating law by fiat.

Thursday, September 28, 2017


AILA is reporting that USCIS will resume Premium Processing Service (PPS) for H-1B petitions, effective October 3.  Accordingly, PPS will again be allowed for H-1B transfers, amendments, and extensions.

USCIS previously restarted PPS for H-1B cap-subject petitions on September 18.  Earlier this summer, USCIS resumed PPS for H-1Bs for cap-exempt employers (e.g. research entities and universities), and H-1Bs for doctors.

USCIS allows an upgrade for previously filed a petition.  If you have filed an H-1B petition and would like your petitioned upgraded to PPS, please contact your MU attorney or staff member.

Monday, June 26, 2017



Come join us as MU Law explores the latest legal topics on the H-1B Cap 2017 & the Trump Administration by hosting a free educational webinar

Who's Invited?
Clients & Friends

June 29, 2017 @ 3PM / 12PM PT

The Webinar will take place on 

Please click the link below to register
Please register for the conference at

You will be provided a link for the event once registered! 

This year, the H-1B cap was reached in the first week with approximately 199,000 petition filings. Our webinar will feature in a range of topics including:

Alternatives for employees not chosen in this year’s CAP; Preparing your employee for the consulate interview; H-1B Dependency Rule & Issues with staffing companies; H1-B Amendments; Site Visits, and more.

The webinar will also have a special update on the new Trump Administration. MU Law’s Chris Musillo, who has recently traveled to Washington DC, will provide an update on what potential changes will be coming to employment-based immigration considering the new administration and recently issues memos.

The webinar will last for approximately 90 minutes, including a live Q&A session at the end.

We hope to see you there! 

For more information on the agenda of the webinar, please see below. Thank you.

  1. H-1B Cap 
    • Alternatives for employees not chosen in this year's CAP
    • Preparing your employee for the consulate interview
    • On-boarding an employee
  2. H-1Bs in 2017
    • H-1B Dependency Rule (LCA & 50/50 rule) 
    • H-1B issues for Staffing Companies and Third-Party Placements
      • What is Third-Party Placement v. In-House work?
    • March 31, 2017 Computer Programmer Memo
      • Rescinds the December 22, 2000 Terry Way memo issues to the Nebraska Service Center 
      • Implications for future H-1B filings 
    • H-1B Amendments 
      • Short Term Placement Rule (30-day rule)
      • Amendment pending but employee is now moving to new work site. What is the Employer's strategy? 
      • Employee is still abroad but work site changes
      • Pending H-1B CAP case but the assignment no longer exists 
    • Site visits
      • How can the Employer prepare for a site visit? 
      • How can you prepare your employee for a site visit? 
  3. Immigration in the era of the Trump Administration
    • Traveling and Consular Process
    • Potential regulatory changes 
    • Potential legislative changes 
  4. Q&A

Thursday, May 4, 2017


USCIS has just announced that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in their computer-generated random process.  It may take a week or so for all of the H-1B cap receipts to be delivered.  If a Beneficiary has not received an H-1B receipt notice in the next week or so, it stands to reason that they have not “won” the H-1B lottery.

Shortly, USCIS will begin returning all H-1B cap-subject petitions that were not selected.  USCIS is unable to provide a definite time frame for returning these petitions.  USCIS will issue an announcement once all of the unselected petitions have been returned.

In order to balance the distribution of H-1B cap cases, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center.  

Tuesday, April 18, 2017


USCIS announced on April 17, 2017, that it has received 199,000 H-1B cap-subject petitions, which is about 20% fewer than the 236,000 H-1B cap-subject petitions that were received in 2016 and the 233,000 that were received in 2015.  USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 43% of their H-1B cap filings to be H-1B cap winners.

As announced on March 3, USCIS has temporarily suspended premium processing for all H-1B petitions, including cap-exempt petitions, for up to six months.

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. 

Wednesday, April 5, 2017


The USCIS has issued a Policy Memorandum that will likely lead to denial of Computer-related positions where the employer uses a Level 1 OES wage.  Accordingly, MU Law recommends that all clients use at least Level Two OES wages, or use alternative wage surveys.  The new Policy Memorandum takes immediate effect and will be used for all H-1B petitions: H-1B cap, H-1B extensions, H-1B transfers, and H-1B amendments.   

The March 31, 2017 Policy Memorandum rescinds a seventeen-year-old December 22, 2000 Policy Memorandum, issued by Nebraska Service Center then-Director Terry Way.  There is little doubt that the new Policy Memorandum is a direct result of immigration restrictionists in the USCIS who feel emboldened by the new Trump presidency.  It remains to be seen how restrictive USCIS officers will be as they interpret forthcoming computer H-1B petitions.

At virtually the same time, USCIS also has issued additional measures aimed at perceived abuses in the H-1B program.  The April 3, 2017 press release says that these site visits will focus on:
-Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
-H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and 

-Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Saturday, March 4, 2017


USCIS will no longer accept Premium Processing Service (PPS) filings for any H-1B petition, starting April 3, 2017.  USCIS says that the suspension could last for 6 months.   PPS will not be available for H-1B cap cases, H-1B cap-exempt cases, H-1B extensions, H-1B amendments, or any other type of H-1B petition.

USCIS claims that by suspending the PPS program for H-1B petitions, it will help them reduce overall H-1B processing times.  

Here is the full press release:

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. We will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.
While premium processing is suspended, we will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.
We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, we will refund the premium processing fee if:
  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. We did not take adjudicative action on the case within the 15-calendar-day processing period.
This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.
We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:
  • 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. 

Wednesday, January 18, 2017



In anticipation of the H-1B cap filing date of April 1, 2017, MU Law will be holding a free teleconference for our clients and friends on February 15, 2017 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith , who will register you for the teleconference.

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2017.

We will also have a special update on the new Trump administration.  MU Law's Chris Musillo is traveling to Washington DC in early February.  On this call, Chris will provide an update on what potential changes will be coming to employment-based immigration in light of the new administration.

H-1B Teleconference Agenda
  • H-1B Cap Basics and Projections
  • H-1B Dependency
  • H-1B issues for Staffing Companies and Third Party Placements
    • What is Third- Party Placement v. In-House work?
    • Employer-Employee relationships
  • Hot issues:  
    • Cap-gap for F-1s
    • CPT / OPT maintenance
    • NIV maintenance
    • H-4 EAD rule
    • H-1B amendments: lengthy processing times
  • Top 10 things H-1B employers can do to stay compliant
  • Legislative Update
    •  What we can expect from the Trump administration and the Republican congress.
  • Q&A
Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

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.

Wednesday, October 26, 2016


Earlier this year in May the USCIS published a proposed rule to increase fees.  On October 24, 2016, the final rule was published adjusting the fees for most immigration applications and petitions.  The new fees will go into effect on December 23, 2016.
The new fees are:

Current Fee
New Fee

A full list of all of the new fees can be found on the USCIS website.

The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits.  The fee increase is the first in the last six years and.  The fees will go up an average of 21 percent and will recover the costs associated with fraud detection and prevention and national security.

Wednesday, May 4, 2016


On March 11, 2016 the USCIS published the rules of a new, expanded STEM Extension OPT program.  The new STEM Extension will go into effect Tuesday, May 10, 2016.  Among other changes, the program extends the length of the STEM Extension from 17 months to 24 months and that students are now permitted an aggregate of 170 days of unemployment for OPT and the STEM Extension period.  For more information, please visit


The new STEM Extension Program requires more from employers.  To employ a student under the new STEM Program, employers must:

  1. Be an E-Verify employer.  This remains unchanged from the previous STEM Extension Program.
  2. Pay the student a wage commensurate to similarly situated US workers.  The calculation of this wage should be documented in the student’s employment record.
  3. Employ the OPT student for at least 20 hours per week in a position that is directly related to the student’s degree.
  4. Report any material changes in the student’s employment to the appropriate school official.  Material changes include: a change in the student’s hours, compensation, worksite, supervisor, or changes to the corporate structure.  Employers must also report a termination or resignation of employment to the school official within 5 business days.
  5. Be subject to site visits by USCIS Officers to verify the student’s employment.
  6. Complete and comply with a training plan for the student’s employment.  See below for additional details about the training plan.


The STEM Extension Training Plan has four components:

  1. Describe the student’s role.  List specific tasks, give time frames and goals, describe the phases of the student’s training.
  2. Identify the goals and objectives of the training.  State specific skills, techniques, or knowledge the student will gain while employed and describe projects or assignments where the student will use these skills.
  3. Detail the employer’s oversight of the student.  State the frequency with which the student will meet with his/her supervisor.  Detail how the supervisor will review or sign off on the student’s work and describe any existing training programs in place.
  4. Define the measures and assessments by which the student will be evaluated.  Detail how the student’s progress will be tested.  Note any new technologies or skills which will be learned and keep a journal of or regular reviews of student’s work.

Employer’s Certification 

Form I-983, the Training Plan for STEM OPT Students is available in draft form but has not yet been finalized by the Immigration Service.  By signing the training plan, the employer confirms:

  1. Employment is directly related to the student’s degree and achieves the objectives of the training program;
  2. Student will receive supervision and training by experienced staff;
  3. Employer has sufficient resources and personnel to provide training to the student;
  4. The OPT student is not replacing a full- or part-time, temporary or permanent US Worker.  The terms and conditions of the student’s employment are commensurate with similarly situated US Workers at the company.
  5. The training complies with all applicable federal and state requirements related to employment.


There are three primary groups of students impacted by the implementation of the new STEM Extension Program:

1.  Students on a 17 month STEM Extension.

  • These students with 150 days of time left on their OPT can apply for an additional 7 months of OPT, giving them the full 24 months of STEM OPT.
  • These 7 month requests must be filed between May 10 and August 8.  The request requires a new I-20, I-765, and filing fee.
  • If the student elects not to ask for the 7 month extension, the student completes the STEM OPT Period under the old rules.

2. Students with a pending STEM Extension on May 10, 2016.
  • The new rules apply to the STEM extension request.  These students should expect an RFE to be issued requesting a training plan and other new requirements. 
  • By responding to the RFE the student amends the STEM OPT to the full 24 month period without filing a new request.

3.  Students on a 12 month OPT.

  • If the OPT expires before May 10, the student should file for the 17 month STEM Extension and expect an RFE (as outlined in #2 above).
  • If the OPT expires after May 10, the student should file by June 1 under either STEM Extension Program - the 17 month or 24 month.
  • If the OPT expires after June 1, the student must file the STEM Extension under the 24 month program.

Wednesday, January 20, 2016



In anticipation of the H-1B cap filing date of April 1, 2016, MU Law will be holding a free teleconference for our clients and friends on February 4, 2016 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will register you for the teleconference.

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2016.

H-1B Teleconference Agenda
  • H-1B Cap Basics and Projections
  • H-1B Dependency
  • H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?
  • Hot issues:  
    • CPT / OPT maintenance
    • NIV maintenance
    • Cap-gap for F-1s
    • H4 EAD rule
    • STEM OPT Lawsuit
    • Increased filing fees for 50/50 employers
  • Top 10 things H-1B employers can do to stay compliant
  • Legislative Update
    • DACA/DAPA to the Supreme Court
    • I-140 EAD
    • Presidential Election: What we can expect from President Trump
  • Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

Monday, September 28, 2015



On late Friday afternoon the USCIS and DOS issued a revised October 2015 Visa Bulletin.  The new revised Visa Bulletin has a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3. 

The USCIS published a stilted “explanation” for the revision,
Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process.
This revised Visa Bulletin means that the majority of people who could have filed their I-485s on October 1, 2015, now must indefinitely wait.  Allowing long-suffering workers the flexibility that would come with the filing of I-485s would have been excellent policy.  Implementing that policy was excellent government action.  Implementing the policy and then rescinding the policy is incompetence.
Many of these immigrant workers spent thousands of dollars hiring counsel to prepare their Applications.  They took time off from their jobs to subject themselves to ridiculously unnecessary (and costly) medical examinations. 
There are already rumors that the USCIS and DOS are being threatened with lawsuits.  There is also a rumor that the USCIS and DOS may not want to repeat the fiasco that was the Visa Gate in 2007, and therefore may rescind this Revised Visa Bulletin.  
If you have been impacted by this, MU Law advises that you hold tight.  There is a chance that the USCIS does the decent thing and rescinds this amended Visa Bulletin.
Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

Wednesday, September 9, 2015


In a ground-breaking change, the Department of State and the USCIS have changed their process for accepting I-485, Applications for Adjustment of Status.  Adjustment of Status applications will now be accepted earlier than when the priority date is current. 

The Department of State will now publish two Employment-based Visa Bulletin charts each month: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply). 

The earlier filing of the I-485 has several direct benefits for both employers and employees:
  • Applicants can file for their Employment Authorization Documents (EADs) concurrently with their I-485.  This allows Applicants to take advantage of the AC-21 rule for same or similar employment.  This also allows applicant to work at second jobs.
  • Applicants can file for their Advance Paroles (APs) concurrently with their I-485.  This allows Applicants to travel without having to obtain a new visa stamp.
  • Spouses of applicants can apply for both EADs and APs.  This allows spouse’s work authorization.
  • Fewer H-1B amendments and extensions should need to be filed.  None of the H-1B amendment rules apply to people who hold EADs.

If you are an employer or an employee who can now file an I-485, please contact our office so that we can prepare and file your I-485.


This Chart is comparable to the old Visa Bulletin.

Employment- Based
All Other
CHINA - mainland born


Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may:

  • Consular Applicants:  assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions.
  • Adjustment of Status Applicants: file Adjustment of Status, EAD and APs.

Employment- Based
All Other
CHINA - mainland born