Labor Immigration Law

United States Labor Immigration Law News and Analysis

May 2014 Visa Bulletin – EB-2 India and EB-3 ROW/China Remain Unchanged; FB-2A Remains Unchanged

The U.S. State Department has just released the May 2014 Visa Bulletin which is the eighth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is, well, the lack of movement in many of the major categories:  no movement in EB-2 India, no movement in EB-3 ROW/China and no movement in FB-2A.

Summary of the May 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the May 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged (again!) at November 15, 2004 and is expected to remain at this level for some more time (but with possible forward movement later in the fiscal year).  EB-2 China moves forward by five (5) weeks to April 15, 2009.
  • EB-3 ROW, China and Mexico remain unchanged at October 1, 2012.  EB-3 Philippines moves forward by three and a half (3.5) months to November 1, 2007, while EB-3 India  moves forward by only two (2) weeks to October 1, 2003.
  • The “other worker” categories for ROW, China and Mexico remain unchanged at October 1, 2012.   Philippines moves forward by three and a half (3.5) months to November 1, 2007, while India  moves forward by only two (2) weeks to October 1, 2003

Summary of the May 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the May 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by two (2) weeks to March 8, 2007.   FB-1 Mexico moves forward by two (2) weeks to November 15, 1993 and FB-1 Philippines moves forward by three (3) months to February 1, 2002.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It remains unchanged for Mexico at April 15, 2012.

EB-2 India and EB-3 ROW/China Remain Unchanged

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.   The reason for this lack of movement is the significant demand and pending cases at USCIS.   Last fall we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent several Visa Bulletins, confirm our predictions.

The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until this summer).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW/China remain unchanged this month after several nice forward movements over the past few months.  This is an indication that USCIS is seeing an increased (and perhaps sufficient) number of filings (I-485/NVC) in this category so that they have enough cases to distribute the annual number of green cards.    This slowdown in EB-3 ROW/China is likely to suggest that there would not be much significant forward movement, and perhaps that there may be a possible retrogression in these categories.

Perhaps a tiny glimmer of light in this, otherwise gloomy Visa Bulletin, is the presence of (a small) forward movement in EB-3 India.

EB-3 China Continues to be Ahead of EB-2 China, but EB-3 is Slowing Down

Over the past several months our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (October 1, 2012) is more advanced than the date for EB-2 China (April 15, 2009).

What we saw in this month’s Visa Bulletin should give some pause to those who believe that they may be able to get a green card faster under EB-3 China than under EB-2 China.    In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We reiterate our caution to EB China applicants that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, and especially given the slowdown in EB-3 China, we believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the May 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the May 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

Alert: FY2015 H-1B Cap Reached on April 7th

The U.S. Citizenship and Immigration Service (USCIS) announced earlier this afternoon that, as of today, April 7th, they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2015 fiscal year (FY2015).    According to USCIS, they have received more than 20,000 H-1B petitions filed for beneficiaries with U.S. master’s degree and more than the 65,000 general H-1B cap petitions.   As a result, any cap-subject H-1B petitions received by USCIS after April 7, 2014 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2015 cap-subject petitions received between April 1 and April 7, 2014.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees (unless there were duplicate filings by the same employer for the same beneficiary, in which case no fees will be returned).

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 28 and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2015 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2015 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

Very Short and Busy H-1B Cap Filing Season Expected: April 1st to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season.     According to our sources (which includes clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business days of April.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 7th.

What is the Ultimate Last Day to Start H-1B and Make It Under the Cap?

We are often asked when is the absolute last day when an H-1B case can be started and filed under the H-1B cap.    The answer is that it varies, depending on many circumstances.    If the employer can plan ahead and file an LCA early (or now), then a new (or confirmed) candidate’s H-1B petition can be started as late as April 1st and still be filed before April 7th.    The LCA is the step of the process which takes the longest to prepare and certify – often 7 business days.  New employers may also need to do a Federal Tax ID (FEIN) verification process (2-3 days) before an LCA is filed.   As a result, while it may be possible to start a new H-1B case as late as March 24, 2014,  there are many possible risk factors which would cause a late H-1B case to be delayed and miss the H-1B cap.

Our strong recommendation to employers is to consider filing all LCAs (even for planned but unconfirmed positions) over the next few days to keep the best possible options for a timely H-1B cap case filing.    Our office is happy to guide you on the timing process to give you the highest possible chance of making the cap.

H-1B Applications Filed Over the First Five Business Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 7th, as expected, all H-1B filings which are received over the first five business days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first business five days in April to be subject to the random lottery.  Last year, in April 2013, there was also a random lottery to allocate the approximately 130,000 H-1B filings among the total of 85,000 H-1B visas.

H-1B Filings Not Picked by the Lottery or Filed After the Cap is Reached Will be Rejected and Returned

H-1B cases filed over the first five business days in April but not picked by the random lottery or H-1B cases filed after April 7th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start At a Later Date

In connection with the high level of H-1B filings, USCIS is likely to change the way they would process premium processing H-1B cases filed under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS is likely to indicate that that for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, the premium processing “clock” will begin later in April, most likely around April 15th.     This means that even for cases filed on April 1, 2014, the premium processing 15-day response window would not start until later in April.   Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) should not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

W will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

April 2014 Visa Bulletin – EB-2 and EB-3 India Unchanged; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A

The U.S. State Department has just released the April 2014 Visa Bulletin which is the seventh Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB-2 India, the continued forward  movement in EB-3 ROW, China and Mexico, and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the April 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the April 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at November 15, 2004 and is expected to remain at this level for some more time (with possible forward movement later in the fiscal year).  EB-2 China moves forward by three (3) weeks to March 8, 2009 (indicating that the forward movement trend is slowing down and is likely to reverse soon).
  • EB-3 ROW, China and Mexico move forward by one (1) month to October 1, 2012.  EB-3 Philippines moves forward by six (6) weeks to June 15, 2007, while EB-3 India  remains unchanged at September 15, 2003.
  • The “other worker” moves forward by one (1) month to October 1, 2012 for ROW, China and Mexico.  It moves forward by six (6) weeks to June 15, 2007 for Philippines and remains unchanged at September 15, 2003 for India.

Summary of the April 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the April 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to February 22, 2007.   FB-1 Mexico moves forward by two (2) weeks to November 1, 1993 and FB-1 Philippines moves forward by two and a half (2.5) months to November 1, 2001.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It remain unchanged for Mexico at April 15, 2012
  • FB-2B ROW, China and India all move forward by seven (7) weeks to October 22, 2006.  FB-2B Mexico remains unchanged at May 1, 1993 while FB-2B Philippines also remains unchanged at June 8, 2003.

EB-2 and EB-3 India Remain Unchanged

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.   The reason for this lack of movement is the significant demand and pending cases at USCIS.   Last fall we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent several Visa Bulletins, confirm our predictions.

The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until this summer).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 China Continues to be Ahead of EB-2 China

Over the past three months or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (October 1, 2012) is more advanced than the date for EB-2 China (March 8, 2009).

In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.   Also not entirely unexpected is the retrogression in FB-2A for Mexican nationals — the Department of State has been cautioning that they see significant demand in this category and a retrogression would be forthcoming.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the April 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the April 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

PERM Statistics from the Department of Labor (FY2014 Q1)

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2014 (October 1, 2013 to December 31, 2013) on their processing of PERM cases and we are happy to share them with our clients and readers.    Please note that this period reflects the period of the partial government shutdown where DOL’s operations were suspended for 16 days.

DOL Processing Statistics (First Quarter, 2014 Fiscal Year)

PERM

According to the report, during the quarter, there were 17,623 cases received (slight 3% increase from the same period in the prior year), 9,076  certified (notable decrease by about 25% from the prior year), 1,039 denied (another notable decrease) and 949 withdrawn (about 50% increase).  Since the net amount of applications filed exceeded the number of applications adjudicated, DOL’s PERM load has grown during the quarter by about 7,000 cases.  This is also evidenced by the increasing PERM processing times (see the most recent report from February 2014).

Of the pending applications at DOL, 64% are pending analyst review (major increase from a year ago when the percentage was 47), 25% are in audit (decrease from 37%), 9% are on appeal (decrease from 14%) and 1% are in sponsorship verification (at filing).  It is interesting to note that there were no cases reported in supervised recruitment — we believe that this may be incorrect reporting, because there are supervised recruitment cases right now at DOL.    It is also notable that the percentage of cases pending analyst review have increased very substantially, while the audits have decreased somewhat.

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 29,612 prevailing wage determination requests filed — of those, 23,585 were for PERM cases (decrease of 3,000 or 8%), 1,404 were for H-1B cases (decrease of 400 or 21%) and 4,625 were for H-2B cases (notable increase of 48%).

In terms of activity, less prevailing wage determinations were issued in Q1 compared to prior quarters – 23,850 (most likely due to the government shutdown).   The number of pending applications has increased compared to a year ago significantly – there are 19,972 prevailing wage cases pending on December 31, 2013 compared to 11,519 on December 31, 2012.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers, in addition to the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is low compared to other quarters during the year.    But this report was affected by the government shutdown in October 2013.    Even then, there were 67,645 H-1B LCA filings in the first quarter, an increase over the prior year’s period which may be attributed to the rush of LCA filings post-government shutdown.    During the quarter, there were 69,334 LCAs certified for 144,657 positions (one LCA can include more than 1 position).

According to DOL, 79% of the LCAs are processed timely within seven days of receipt (last year’s period metric was 99%).     The rate of LCA denial is very small (1,858 out of 79,304 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The first quarter of the FY2014 was a turbulent time at DOL due to the government shutdown and the reports provided for this period reflect this.      We are hopeful that DOL would work on decreasing its load and processing times, especially for the PERM cases where the processing times have increased significantly.    We will continue monitoring DOL processing metrics and report any notable developments and trends.      Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

Current PERM Processing Times (February 5, 2014)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of February 5, 2014.

Current PERM Processing Times

Most notable is the significant processing time for PERM applications – while there is no change in the processing time (7-8 months) for regular PERM cases, we easily look back at 2-3 month processing times as recently as a year or so ago.   The processing time of PERM applications in audit remains unchanged (but significantly long) as well compared to last month.   The processing times, as reported by DOL, are as follows:

  • Regular processing: June 2013.  DOL is processing PERM applications with priority dates of June 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  There is no significant change in the regular processing times compared to the last (January 14, 2014) report.
  • Audited applications: November 2012.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of November 2012.  This processing time has remained unchanged compared to the January 14, 2014 report.   Accordingly, audited PERM applications are processed approximately 15 -16 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): February 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in February 2014.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The February 2014 PERM processing times report shows that the PERM processing times remain largely unchanged compared to our report from a month ago.   Over the past several months, we have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to control and bring down the PERM processing times especially since they were as short as two months not long ago.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

USCIS Reverses OPT Extensions Denied Due to Volunteering or Unpaid Work

Our office had received a number of inquiries and we have worked with a number of individuals, universities and their DSOs who had seen a spike in OPT extension (STEM OPT extensions, most often) which were denied by USCIS due to the fact that the F-1 holder had engaged in volunteering or unpaid work during the term of their initial OPT term due to allegedly exceeding the unemployment maximum allowed for OPTs.      After a number of inquiries to USCIS were raised, USCIS has announced that such denials were issued in error and will work on reinstating the applications (and status) to those F-1 holders who may be affected.

The USCIS Announcement

USCIS’s announcement is dated February 6, 2014 and states plainly that some 17-month OPT STEM extensions were denied in error.     The relevant OPT policy guidance (SEVP OPT 2010 Policy Guidance, Section 7.2.1) states that:

“Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.”

STEM OPT extension applications were denied (in error) solely because the USCIS adjudicator made the determination that the F-1 OPT holder exceeded the unemployment allowance (90 days for 1st year of OPT) and violated their F-1 status, thus making them ineligible for STEP OPT extensions.    As it was clear and as it is confirmed now by USCIS, it appears that such denials were based on inadequate training and/or misinterpretation of the relevant guidance by USCIS adjudicators.

Was Your STEM OPT Extension Application Denied Due to Volunteering/Unpaid Work?

USCIS has created an avenue available to those whose STEM OPT extensions were denied solely on this ground.   The student should contact the Service Center which issued the denial decision.   Specific instructions are below:

If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by sending an email message to the applicable dedicated student mailbox (listed below). In the email message, the student should provide his or her full name, as well as his or her USCIS receipt number relating to the denied OPT STEM extension application.

  • California Service Center: CSC.StudentEAD@uscis.dhs.gov
  • Vermont Service Center: VSC.Schools@uscis.dhs.gov
  • Texas Service Center: TSC.Schools@uscis.dhs.gov
  • Nebraska Service Center: NSC.Schools@uscis.dhs.gov

Conclusion

We are happy to hear that USCIS, upon making a determination of a pattern of incorrect decisions, has reversed course and  has created an avenue to affected F-1 students to reinstate their F-1 status and OPT STEM application.      Unfortunately,  for many affected individuals this kind of announcement and relief may come too late.   For example, some F-1 students whose STEM OPT extensions were denied have already left the US or have moved on to a different status.

Our office stands ready to assist F-1 students who may have been affected by this kind of STEM OPT denial.  Please contact us for an evaluation of your case.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

March 2014 Visa Bulletin – EB-2 India Unchanged; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A; FB-2A Mexico Retrogression

The U.S. State Department has just released the March 2014 Visa Bulletin which is the sixth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB-2 India, the continued forward  movement in EB-3 ROW, China and Mexico, the fact that FB-2A remains unchanged with a (relatively) recent cutoff date, and the significant 18-month retrogression for FB-2A Mexico.

Summary of the March 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the March 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at November 15, 2004 and is expected to remain at this level for some more time (with possible forward movement later in the fiscal year).  EB-2 China moves forward by five (5) weeks to February 15, 2009.
  • EB-3 ROW, China and Mexico move forward by three (3) months to September 1, 2012.  EB-3 Philippines moves forward by two (2) weeks to May 1, 2007, while EB-3 India  moves forward (finally!) by two (2) weeks to September 15, 2003.
  • The “other worker” moves forward by three (3) months to September 1, 2012 for ROW, China and Mexico.  It moves forward by two (2) weeks to May 1, 2007 for Philippines and moves forward by two (2) weeks to September 15, 2003 for India.

Summary of the March 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the March 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by one (1) month to February 1, 2007.   FB-1 Mexico moves forward by two (2) weeks to October 15, 1993 and FB-1 Philippines remains unchanged at August 15, 2001.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It retrogresses for Mexico by moving back almost 18 months to April 15, 2012.
  • FB-2B ROW, China and India all move forward by seven (7) weeks to September 1, 2006.  FB-2B Mexico remains unchanged at May 1, 1993 while FB-2B Philippines moves forward by two (2) weeks to June 8, 2003.

EB-2 India Remains Unchanged; EB-3 India Barely Moves Forward

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.  In the fall of 2013, we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent three Visa Bulletins, confirm our predictions.    The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW, China and Mexico Move Forward Again

In contrast to EB India, we note that the EB-3 ROW, China and Mexico categories continue to move forward (again) and with a good pace.   Last month the forward movement in this category was two months, following a six-month forward movement in the January 2014 Visa Bulletin.   This is another significant movement and would help many EB-3 applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.   Overall, the EB-3 ROW, China and Mexico categories have advanced by almost one year over the past three months.

EB-3 China Continues to be Ahead of EB-2 China

Over the past couple of months or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (September 1, 2012) is more advanced than the date for EB-2 China (February 15, 2009).

In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged; FB2A Mexico Retrogresses Significantly

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.   Also not entirely unexpected is the retrogression in FB-2A for Mexican nationals — the Department of State has been cautioning that they see significant demand in this category and a retrogression would be forthcoming.

We urge those FB-2A Mexico nationals who are current now and who would not be current as of March 1 to consider filing their I-485 application as soon as possible to take advantage of this (rare) opportunity to file I-485 and obtain work and travel authorization documents for as long as the I-485 remains pending.    Please contact us if we can help.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the March 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Visa Bulletin Predictions – Employment-Based

The March 2014 Visa Bulletin also provides a general estimate on the movement of the cutoff dates over the next months.

EB-1.   This category is expected to remain current.

EB-2 ROW.  This category is expected to remain current.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  No forward movement expected.

EB-3 ROW.    After the last few months’  significant forward movement, as demand (number of filings) increases, the forward movement may stop or the dates may even retrogress.   .

EB-3 China.  Expected to track the worldwide (ROW) date.

EB-3 India.  “Little or no” forward movement expected.

EB-3 Philippines.  Expected to keep moving forward by three to six weeks per month.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the March 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns

U.S. Citizenship Form N-400 Revised Substantially

The U.S. Citizenship and Immigration Service (“USCIS”) just announced that they have released the revised FormN-400, Application for Naturalization.   The main changes in the new N-400 form are the new questions required by anti-terrorism and child soldier prevention statutes, the (according to USCIS) clearer eligibility instructions and the addition of a dynamic 2D data barcode feature.    These changes, however, more than double the size of the N-400 form — the old version was ten pages while the new and current version is 21 pages long.

Form N-400 Changes

Perhaps the most obvious change to the N-400 form is the addition of a 2D dynamic barcode at the bottom of each page.  This technology has been used increasingly by USCIS in a number of their forms.   The idea is that as a user enters information on the form electronically (in PDF), the 2D barcode at the bottom of the page changes to incorporate the information provided on the form.     During the intake processing of the application, USCIS would then simply scan the barcode on each page and the form data would be entered automatically into the system (more, and somewhat technical, information on the 2D barcode process).

In addition, USCIS has added questions to conform with the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 and Child Soldier Prevention Act of 2008.   The additional information is important for USCIS to make a better determination of an applicant’s eligibility for U.S. citizenship.  The questions relate not only to concerns surrounding good moral character but also to issues relating to the security of the United States.

And perhaps the most important change is that the new form has revised and more comprehensive instructions on general eligibility requirements intended to help applicants understand the naturalization application process.   The N-400 form was not easy before the revision, now with an extra eleven pages, great instructions are critical.

Versions and Validity of N-400 Form

The new Form N-400 is available for download and is recommended to be used for all future N-400 U.S. Citizenship filings.   On Monday, May 5, 2014, USCIS will no longer accept older versions of Form N-400.   USCIS will reject and return previous versions of Form N-400 submitted after May 5, 2014.

Conclusion

Our office handles many N-400 U.S. citizenship applications and we would be happy to assist green card holders who are eligible to become citizens.    Please contact us for an evaluation of your citizenship eligibility and for a process timeline and fee estimate.  Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

OFLC Annual Report Details DOL Employment Visa Processing

The Department of Labor (DOL) has released the most recent annual report for the Office of Foreign Labor Certification (OFLC).    Even though the report was recently released, it is for the 2012 fiscal year (FY2012) which covered the period between October 1, 2011 and September 30, 2012.    While we understand that the relevant period is not very recent, the annual report provides a very detailed picture and analysis of the various visa application processes handled by DOL and also provides very detailed statistics and graphs.

Highlights of the OFLC Report

The report is a 136-page document full of interesting statistics and patterns.  We will not provide a very detailed analysis of most of the areas in the report; however, we would share some interesting points we saw in the report.

  • In FY2012 OFLC processed almost half a million applications for 1.2 million positions.
  • The H-1B and H-2A programs saw increased in the number of applications (16% increase for H-1Bs); while PERM and H-2B decreased (10% decrease in PERM and 4.5% decrease for H-2B).
  • The PERM approval rate was approximately 81%.
  • The most active occupations were, not surprisingly, IT positions (Software Developers, Analysts, Electronics Engineers), followed by Admin Services Managers and Accountants/Auditors.
  • India is the leader in PERM cases (55%), followed by China (6%), Canada (5%), South Korea (5%) and Philippines (3%).
  • California is the state with most PERM cases, followed by New Jersey (decreasing trend), New York (decreasing trend), Texas (stable) and Washington (increasing trend – mainly due to Microsoft).
  • The majority (70%) of the certified PERM applications were for STEM degree holders (of which, about 95% were for IT/Engineering).    The same proportion was noted in the H-1B/LCA filings.

Conclusion

We invite our clients and readers who have an interest in the extensive details provided in the report to review it.   Our summary is simply intended to draw some interesting (to us, at least) highlights.   Although the report reflects a time period ending more than two years ago, especially in certain fast-pace industries, it still provides a valuable description of the process and some interesting trends and patterns among the various DOL immigration processes.

We invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.      Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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