Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for February, 2008

Fiscal Year (FY) 2007 PERM Statistics

Earlier in February, the Office of Foreign Labor Certification at the Department of Labor released its official FY 2007 data covering cases processed under the Permanent Labor Certification Program (PERM). The PERM data provides an insight into the level of demand for U.S. jobs in different industry sectors and geographic areas. This data is equally useful to current and prospective PERM applicants (employees and employers) and to U.S. employers in general.

Summary of the PERM Data

FY 2007 PERM Economic Sectors ChartDuring FY 2007, there were 98,753 applications processed and 85,112 PERM cases certified (an approval rate of 85%). Out of the 85,112 certified cases, 55,214 were employed on H-1B visa. Similarly, out of the 85,112 certified cases, about 30% had Bachelor’s degree and 48% had Masters or higher degree. The average age at certification was 34 and the average annual wage offer was $64,589. .

Economic Sectors

It may not come as a surprise that the top economic sector by a large margin was Information Technology, at 21,581 certifications, followed by Advanced Manufacturing with 11,980 certifications and Educational Services with 6,192 certifications. It may be worth noting that while the top economic sectors with PERM certifications had a high percentage of Bachelor or higher degree and a high wage, there were three sectors, Hospitality and Tourism, with 4,769 certifications, and Construction, with 3,902 certifications, and Agrobusiness, with 1,069 certifications, which had fairly low percentage of Bachelor’s degree or higher (under 30%).

See the full FY 2007 PERM Economic Sectors Chart.

Top Occupations in Demand

In line with the economic sector numbers, the top three occupations were Computer Software Engineers with 9,844 PERM certifications, System Software Engineers, with 5,716 certifications, and Computer System Analysts, with 4,012 certifications. Interestingly, the fourth ranked occupation was restaurant cooks, with 2,642 certifications.

See the full FY 2007 PERM Occupations Chart.

Top Countries of Citizenship

The top five countries were India, with 24,573 certifications (29%), China, with 6,846 certifications (8%), Mexico, with 6,442 certifications (8%), South Korea, with 5,159 certifications (6%), and Canada, with 4,837 certifications (6%).

See the full FY 2007 PERM Applicant Countries Chart.

PERM Certification by State

California had the most PERM certifications, 20,222 (or 23%) by a large margin, followed by New York, 8,843 (10%), New Jersey, 6,594 (7%), and Texas, 6,534 (7%). It is interesting to note that the highest paying jobs went to Washington State (average annual wage of $82,698) which most likely can be explained by Microsoft’s heavy reliance on PERM to bring in qualified foreign-born software engineers.

See the full FY 2007 PERM States Chart.

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Unpaid Volunteer Work on H-1B, H-4 or F-1 Visas

A very common question by the holders of visas which have employment restrictions is, “Can I engage in unpaid volunteer work under my visa?

The answer is that it depends on the type of unpaid volunteer work you are seeking to perform.  The regulations state in broad terms that unauthorized work is prohibited.  But to distinguish whether volunteer work is unauthorized, it is helpful to understand the government’s motives in setting up this regime.  The USCIS’ goal is to prevent foreign nationals who have employment restrictions in engaging in work which could give them an advantage over U.S. citizens or which could drive down Americans’ wages or benefits.

Therefore, it is not permitted to volunteer for a productive position which is usually paid.  The rationale is that if you are offering to work without a pay in a job which would otherwise be filled by an American who would be paid, then you are subverting the employment authorization system’s goals and undercutting Americans’ job prospects and wages.

However, if the volunteer work you are seeking is for a true volunteer position, for example working for a non-for-profit organization such as a museum, a fire-station, a school or a church where there is no general expectation of compensation,  then volunteering and working without pay would be legal. One should look at whether Americans would perform the same job without pay and under similar circumstances and if the answer is “yes,” then a foreign national in an employment-restricted  status can volunteer and work without pay.

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March 2008 Visa Bulletin Advances Most EB3 Numbers

The March 2008 State Department Visa Bulletin is out.  The most significant development is the EB3 “worldwide” (everyone except from China, India, Mexico and the Philippines) category applicants.

EB3 – Employment-based, Third Preference

The best news is for applicants under the EB3 category.  The cutoff date for EB3 “worldwide” category and the Philippines moved forward significantly, to January 1, 2005, an advance of more than two years.  China moved forward by more than a year, to December 1, 2002.  India moved forward by few months, to August 1, 2001.

EB2 – Employment-based, Second Preference

While EB2 India is still unavailable, EB2 China has moved slightly forward to December 1, 2003.

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Form I-864 Affidavit of Support – Insufficient Income

Many foreign nationals who are on H-1B visa and have their spouses on H-4 visa often face the issue of insufficient income for Form I-864, Affidavit of Support purposes when filing for adjustment of status.  Most of the time, especially in the labor green card context, the person filing the Affidavit of Support (the “sponsor”) is the same person as the applicant immigrant.  However, it is possible that the sponsor is a person other than the applicant immigrant.  We review the options of a sponsor who applies for a green card or adjustment of status for his- or herself and who wishes to have his spouse obtain a derivative green card and employment authorization.

Unfortunately, the USCIS does not consider the future income which will start coming from the non-working spouse as soon as the spouse receives a derivative employment authorization document (EAD) and starts working.  USCIS states clearly that if the sponsor’s income is not sufficient to meet the requirement for the household size, then the applicant immigrant will not be eligible for immigrant visa or adjustment of status.

Thus the options for meeting the income requirement are as follows:

  •  Include income from relatives or dependents living in the sponsor’s household or dependents listed in the sponsor’s most recent Federal tax return.  Such relatives and dependents must sign form I-864A.
  • Include income from the applicant immigrant, if that income will continue coming from the same source.  In the case of H-1B/H-4 couple, this would not be applicable because the H-4 spouse is not eligible to work.
  • Include the value of assets of the sponsor or any household member who is willing to sign I-864A Form.
  • Include a joint sponsor whose income and/or assets equal at least125 percent of the Federal Poverty Guidelines.

The goal of the I-864 Form is not to eliminate low-income immigrants but to ensure that such immigrants, once admitted to the U.S., do not become a burden to the social services system.  The options outlined above provide, in our opinion, sufficient opportunities for applicants to satisfy the income requirement.  Finally, the USCIS scrutinizes I-864 Forms for insufficient income and any false information may be cause for denial of benefits.

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Helpful H-1B Filing Tips

We have written before about the H-1B quote of 65,000 which opens on April 1, 2008 for starting employment date of October 1, 2008. We anticipate that the entire quota will be used on the first day of the filing. In light of such a small filing window, it becomes critical that the H-1B petition be completed and filed correctly.

Here are few helpful H-1B filing tips.

  1. Clearly label all H-1B cases in red ink on top margin of Form I-129 petition. Use the following codes:
    • Reg. Cap (65,000 regular cap cases)
    • C/S Cap (Chile or Singapore H-1B1s)
    • U.S. Masters (20,000 cap exemption for Master’s degree or higher holders)
    • Exempt (for petitioners filed by certain institutions of higher education; nonprofits; and research organizations. Also, note new filing address for this category.)
  2. Fill out Form I-129 and supplements correctly, consistently, and competently. This is an obvious one but it is worth mentioning again.
  3. Employer must submt the correct filing fee:
    • Base filing fee: $320
    • American Competitiveness and Workforce Act of 1998: $750 for employers with 1 to 25 full time employees unless exemption applies or $1,500 for employers with 26 or more full time employees unless exemption applies
    • Fraud fee: $500
    • Premium Processing Fee: $1,000
  4. Send only one petition per envelope.

Note that incorrectly completed or filed petitions may result in rejection or denial of the petition.

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New Centralized Filing Location for H-1B Cap Exempt Petitions

The USCIS just announced that in an effort to streamline the processing and adjudication of H-1B petitions, they will employ a new special unit dedicated to processing H-1B cap exempt petitions at the California Service Center.

As many of our readers know, there is an annual limit of 65,000  H-1B visas.  The limit is per fiscal year (FY) which starts in October 1 and the USCIS starts accepting new H-1B applications for the FY starting in October on April 1st.  We are anticipating that due to the extremely heavy demand of H-1B visas, the entire cap of 65,000 will be exhausted on the first day of filing.

Cap Exempt Categories

There are several categories of petitions which are not subject to the cap.  These cap exempt  categories have become increasingly attractive as foreign nationals are often frustrated by missing the single April 1 filing day.  Cap exempt petitions are petitions filed by:

  • Institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
  • Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
  • Nonprofit research organizations or governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)(C).

Employers who fall in any of the categories above can file a cap exempt H-1B petition at any time during the year.

New Mailing Address

Qualifying cap exempt H-1B filings should be now addressed to the following addresses:

Direct mail:

U.S. Citizenship and Immigration Services
California Service Center
P.O. BOX 30040
Laguna Niguel, CA 92607-3004

For non-USPS deliveries (e.g. FedEx/UPS):

U.S. Citizenship and Immigration Services
California Service Center
24000 Avila Road, Room 2312
Laguna Niguel, CA 92667

If a cap exempt petition is received at another service center, it will be expeditiously forwarded to the California Service Center.  Additionally, USCIS is expected to modify the filing instructions to require all cap exempt filings to be made at the California location.  Thus, it is important to use the new address to avoid any delays in your application.