Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for March, 2009

Annual Statistics on Green Cards

The Department of Homeland Security’s Office of Immigration Statistics has released its annual U.S. Permanent Residents: 2008 report.   The report provides a summary of the approvals of the various types of legal permanent resident (LPR) petitions.  According to the report, in 2008, a total of 1,107,126 persons became LPRs.  Of these, 58% already lived in the U.S. (and adjusted status, Form I-485).  Nearly 65% were granted LPR based on family relationship with a U.S. citizen or LPR.  The leading countries were Mexico (17%), China (7%) and India (6%).

The report provides a very useful breakdown by category and year which allows us to analyze the trends in green card approvals.  It is important to note that both 2007 and 2008 noted a slight decrease in the total number of green cards given.  In 2006, DHS recorded  1,266,129 green cards.  The decrease in 2008 is wholly attributed to a decrease in the family-based petitions. Despite this slight decrease, the numbers of green cards approved for each of the family-based categories remained fairly stable over the past three years.

The employment-based petitions in 2008 increased from 159,081 (2006) to 162,176 (2007) to 166,511 (2008).  It is interesting to note that the number of EB-1 petitions remained stable, while the number of EB-2 green cards approved increased significantly, more than 3 times from 21,911 (2006) to 70,046 (2008).   On the other hand, EB-2 recorded a significant decrease, from 89,922 (2006) and 85,030 (2007) to only 48,903 in 2008.  What do these numbers mean?  We think that they suggest a trend in that many applicants for green cards who are in EB-3 are, after many years of waiting, trying to upgrade and ultimately succeeding in obtaining their green cards approved under the EB-2 category.

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Information About the (Possible) H-1B Lottery

Many of our clients have asked us whether there will be a lottery during this year’s H-1B filing season and if there will be one, how the lottery would work. Amid difficult economic times and increasing jobless rate, it is expected that the H-1B applications this year will be less than they were in April 2008.  However, many industries are recession-proof and in our practice we have actually seen an increase in the H-1B filings this year compared to last.

USCIS has confirmed that if it determines that there are sufficient number of H-1B applications during the first five business of April to reach the cap, then a lottery will be used to distribute the available visas among all petitions received during all five days.  USCIS will start issuing receipt notices once it has determined that that sufficient number of applications to fill the cap have been received.  After the lottery is conducted, USCIS will issue receipt notices for all H-1B applications which were “picked” by the lottery and the receipt notices are likely to be dated April 8, 2009.

In the event that the H-1B cap is not reached during the first five business days in April, or until April 7th, USCIS will continue to accept H-1B petitions until the cap is reached.  Once the cap is reached, USCIS will conduct a “mini lottery” to distribute remaining H-1B numbers among the H-1B petitions received on the last day before the cap is reached.

It is difficult to predict whether the cap will be reached by April 7th or if not, when it will be reached.  USCIS has committed to providing timely updates on the cap status and we will provide immediate updates.  Please sign up for our newsletter to receive updates via email.

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Current PERM Processing Dates/Times

The Department of Labor has provided an update on the current PERM processing dates.  Unfortunately, delays in PERM processing still remain (we wrote about these in the past:  1 | 2 | 3).  During the Spring 2009 AILA conference, DOL has provided some updates on the current PERM processing dates.  They are as follows:

  • No audit: July 2008;
  • Audit: September 2007;
  • Appeal: June 2007.

Hopefully, the upcoming PERM system improvements and the emphasis on efficiency at the Atlanta PERM center will improve the current 9-month PERM processing time.

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Department of Labor Upgrades to PERM System Postponed

We have mentioned previously in some of our articles the planned replacement of the current PERM and LCA filing systems.  Although the replacement of these two systems does not necessarily affect employees and employers as much as it affects immigration attorneys (as immigration attorneys prepare these filings most often), it is helpful to monitor the developments in these IT systems as they may indicate trends in PERM and LCA processing times and procedures.

Initially, the Department of Labor was scheduled to release new IT systems to handle PERM (part of some employment-based green card application processes) and LCA (part of the H-1B work visa application process) filings with new and enhances systems.  Last Friday, March 20, 2009, DOL announced that the launch of the new PERM filing system will be delayed from July 1, 2009 to September 2009 due to technical issues.

At the same time, DOL has confirmed that the LCA filing system will be launched on April 15, 2009, with concurrent use of the old and new systems between April 15, 2009 and May 15, 2009.  After May 15, 2009, it is anticipated that only the new LCA filing systems will be available for preparing and filing LCAs.

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More Clarifications on H-1B for TARP Companies

USCIS has released a memorandum, dated March 20, 2009, which provides additional clarifications about H-1B sponsorship by companies which are recipients of TARP funds.  We have written extensively about these restrictions earlier this year but there were still questions outstanding.  This USCIS guidance should provide final clarify on the subject.

The restrictions apply to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

However, one of the main questions after the Stimulus Bill passed was whether the new rule would apply for existing H-1B holders at TARP companies.  The USCIS memorandum makes it clear that  the restrictions do not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

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DOJ Releases FOIA Guidelines Favoring Disclosure and Transparency

The Department of Justice has released a new set of Freedom of Information Act (“FOIA”) guidelines that direct all executive branch departments (DHS and USCIS including) to apply a presumption of openness when administering FOIA.

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the entire government. As  to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

We are hopeful that this memo and the new FOIA guidelines will allow faster and more efficient processing of FOIA requests submitted to USCIS for production of case files.

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AAO Processing Times Report

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of March 18, 2009.

Among the most notable AAO processing times:

  • H-1B appeal takes 13 months (compared to 14 months when last reported in January 2009);
  • I-140 EB1 Extrordinary Ability and Multinational Manager or Executive categories both take 9 months while EB1 Outstanding Professor or Researcher category takes 8 months on appeal;
  • I-140 EB2 (Advanced Degree) takes 21 months while EB2 (NIW) is current (meaning less than 6 months); and
  • I-140 EB3 Skilled Worker takes 20 months while EB3 Other Worker takes 22 months on appeal;

Read the full AAO Processing Times report.

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USCIS Releases a New I-9 Employer Handbook

USCIS has released an updated Employer Handbook, Instructions for Completing Form I-9.  The new handbook describes in detail the requirements imposed by Form I-9, Employment Eligibility Verification.  Note that the new handbook contains procedures which should be used only on or after April 3, 2009.

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Additional Points About the April 2009 Visa Bulletin and EB-3

We wrote last week about the April 2009 Visa Bulletin and the significant retrogression of the visa numbers in EB-3 Rest of World (ROW) category.  It is important to note that the April 2009 Visa Bulletin retrogression for EB-3 will be applied immediately, as opposed to as of April 1, 2009 (see last sentence of Item A, paragraph 1 of the April 2009 Visa Bulletin).

Also, Charles Oppenheim of the State Department has indicated that further retrogression or “unavailability” at any time cannot be ruled out.” As a result, it is highly unlikely the EB-3 category will remain available in the near future. Further retrogression or “unavailability” may occur at any time.   As a result, immigrant visas can be issued by consular posts at interviews this month only if the consular post has obtained the visa number prior to the announcement of the cut-off. Additionally, USCIS will not approve any adjustments in the EB-3 category with cutoff dates before May 1, 2005, unless the visa number already had been assigned.

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AAO Procedure Frequently Asked Questions

Our firm handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries about the procedural aspects of an AAO appeal.

About the AAO

As a short preliminary background matter, the AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

What Happens to USCIS Case When An AAO Appeal is Filed?

When USCIS denies a case, the petitioner or applicant has 30 days within which to appeal the denial decision.  The appeal is filed on Form I-290B with the USCIS service center which initially denied the case.  The filed I-290B appeal form goes initially to the same officer who initially denied the case.  Such officer first reviews his or her decision to determine whether the appeal includes new evidence or other legal basis to overcome the denial.  If the denial is overcome, the USCIS service center will make a motion to reopen the case and approve it.  Alternatively, if the denial is not overcome, the case is forwarded to the AAO.  These procedures are more fully described in the federal regulations.  8 C.F.R. 103(a)(2).

What is The Timing of an AAO Appeal?

Under the regulations, an AAO appeal is timely filed (at the USCIS office which issued the denial decision) if it is received within 30 days of the date of the denial, or 33 days if by mail.

What Happens if AAO Denies the Appeal?

An AAO denial of an I-290B appeal can be challenged in federal district court.  An AAO denial decision is considered to have exhausted all administrative remedies, which is a requirement for a federal district court challenge.  Challenge in a federal court of an AAO denial is significantly more costly than an AAO appeal, but for some cases it may be the most suitable strategic move.

What are Current AAO Processing Times?

Current AAO processing timelines are released every three to four months.  Please follow this link for the latest AAO processing times.

Can I File a Second Petition While My Initial Petition is Pending at AAO?

Many of our clients have inquired as to whether they can refile another USCIS petition while the I-290B appeal of the first petition is pending with AAO.  The answer is that a second petition can be filed, but it is USCIS’S policy to hold the second petition in abeyance pending the outcome of the appeal of the first petition.  In many cases, to speed up the processing of the second petition, it is best to withdraw the AAO appeal.

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