Labor Immigration Law

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Friday, July 3, USCIS has received approximately 45,000 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

The numbers, as of July 3rd, indicate that there was an increase of about 200 H-1B regular cap applications counted under the cap for the period between June 26th and July 3rd (the number, as of June 26th was reported to be 44,800).   As we have indicated in our past H-1B count updates, the rate of new H-1B filings has slowed down substantially over the past several weeks and if the current rate holds steady,  we expect the H-1B cap to remain open for at least few more months.

The Nebraska and Texas Service Centers (NSC and TSC, respectively) have informed that they will start issuing denials on pending I-485 upon denial of the underlying I-140 petition.

Until now, USCIS has a policy from a Memorandum of Feb. 28, 2003 from William R. Yates, “Procedures for Concurrently Filed Family-Based or Employment-Based Form I-485 when the Underlying Visa Petition is Denied” pursuant to which policy TSC has been using its discretion to wait 30 days before denying the I-485 applications, in case an I-290B was filed on the I-140 denial and TSC might be able to act on that at the Service Center level.

Under the new policy, both TSC and NSC will deny I-485 applications when they deny the underlying I-140 petition.   As a result, a motion to reopen/reconsider or appeal on Form I-290B will have to be filed not only on the I-140 denial but also for all of the I-485 denials (more than one of the direct beneficiary has dependents). This not only creates additional work for preparing and filing more I-290B forms, but also requires additional payments of the I-290B filing fee (which is $585.00 as of the time of this writing).

The Department of Labor (“DOL”) has released a quarterly report covering the first quarter of 2009 (ending on March 31, 2009) which report indicates the performance measurements for four categories of labor certifications performed by DOL:

H-1B Labor Condition Applications (“LCA”).  The target performance rate set by DOL is seven (business) days.  For the first quarter, the performance rate was 100% of the goal, meaning that DOL responded to all  LCA applications within seven days.  This however, reflects statistics from the old, pre-iCert, system which used to provide instant LCA certification.  Under the new iCert LCA system, the LCAs are reviewed manually and from our experience an LCA takes up to 7 business days to certify.  The iCert system went into effect on June 30, 2009.

PERM Labor Certifications.  The target performance rate is review within six months of filing of PERM.  Unfortunately, the reported rate of PERM certifications which fell within the target of six months is only 11%.  This is very low performance rate and supports our experience from earlier this year that DOL took upward of 9 months to certify PERM applications.  DOL’s explanation is that such increased processing time is due to increased integrity checks in light of declining economy and continued PERM filings for positions where there are U.S. workers available (for example, financial services).

H-2A and H-2B.  The performance target for H-2A is 15 business days while the performance target for H-2B is 60 days.  The on-target performance was 38% for H-2A and 31% for H-2B.  An important note is that the H-2B regulations were revised as of January 2009 and the numbers do not reflect properly the new H-2B rules.

Conclusion.  There seems to be increased delays overall in all categories.  Most troubling are the significant PERM delays.  We have written previously about the delays in PERM processing (which seem to be improving slightly) but  the PERM performance chart for the past eight quarters suggests that return to 6-month processing PERM is far.  Additionally, LCAs for H-1B applications now take up to seven business days which adds a week of processing to all H-1B applications.  We urge our clients to factor this processing time when planning business and employment decisions with respect to H-1B workers.