Labor Immigration Law

Last week we discussed the recent Congressional Research Service (CRS) report on unauthorized aliens.    Today, we discuss the companion CRS report, analyzing the permanent residency admissions to the U.S.   Both reports are helpful in providing some current information on the state of the U.S. immigration system and on the conflicting priorities which are likely to be part of the new comprehensive immigration reform, if and when it happens.

CRS Report on Permanent Admissions

The U.S. permanent admission policy is driven by four major principles: the reunification of families (family-based), the admission of immigrants with needed skills (employment-based), the protection of refugees (asylum), and the diversity of admissions by country of origin (DV lottery).

The CRS report on permanent admissions seeks to analyze the legal permanent residents (LPRs or green card holders) population in the U.S.   By way of contrast to the CRS report on unauthorized aliens, statistics on the permanent resident population and recent admissions are readily available and accurate.

During FY2008, a total of 1.1 million aliens became LPRs in the United States. Of this total, 64.7% entered on the basis of family ties.  Other major categories in FY2008 were employment-based LPRs (including spouses and children) at 15.0%, and refugees/asylees adjusting to LPR status at 15.0%. Over 17% of all LPRs come from Mexico, which sent 189,989 LPRs in FY2008.

Adjustment of Status v. Consular Processing

Many LPRs are adjusting status from within the United States rather than receiving visas issued abroad by Consular Affairs before they arrive in the United States. In the past decade, the number of LPRs arriving from abroad has remained somewhat steady, hovering between a high of 421,405 in FY1996 and a low of 358,411 in FY2003. Adjustments to LPR status in the United States has fluctuated over the same period, from a low of 244,793 in FY1999 to a high of 819, 248 in FY2006.

Approximately 58% (or 640,568) of all LPRs admitted in 2008 adjusted their status in the U.S. as opposed to going through consular processing abroad.     Most (89.8%) of the employment-based immigrants adjusted to LPR status within the United States in FY2008. Many (51.4%) of the immediate relatives of U.S. citizens also did so that year. Only
25.0% of the other family-preference immigrants adjusted to LPR status within the United States in FY2008.

Country Breakdown

In FY2008, Mexico led all countries with 189,989 foreign nationals who became LPRs. The People Republic of China followed at a distant second with 80,271 LPRs. India followed with 63,352 LPRs. The Philippines came in fourth with 54,030 LPRs. Three of these top countries exceeded the per-country ceiling for preference immigrants because they benefitted from special exceptions to the per-country ceilings. Mexico did so as a result of the provision in INA that allows 75% of family second preference (i.e., spouses and children of LPRs) to exceed the per-country ceiling, while India and China exceeded the ceiling through the exception to the employment-based per-country limits.

The June  2010 Visa Bulletin was released earlier today by the State Department.  The ninth visa bulletin for the fiscal year 2010 brings gradual forward across most employment-based categories except EB-2 India (no change this month, for the third month in a row).

The State Department added another country to the list of oversubscribed countries – Dominican Republic.  This means that for all family and employment-based categories, there is now a category for the Dominican Republic, in addition to China (mainland-born), India, Mexico and the Philippines.

Summary of the June 2010 Visa Bulletin

Below is a summary of the June 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (2) months to November 22, 2005, and EB-2 India remains unchanged at February 1, 2005.  This is the third month in a row when EB-2 India has remained unchanged.
• EB-3 ROW moves forward by almost two (2) months to June 22, 2003, EB-3 China moves forward also by two (2) months to June 22,  2003, while EB-3 India moves forward by three (3) weeks to October 22, 2001.  EB-3 Mexico remains unavailable.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is now unavailable.

Why Does EB-2 India Not Move?

Our readers and clients have asked us what is the cause of the lack of movement in the EB-2 India category.  Over the past few years, with the severe retrogression of EB-3 India, many Indian nationals have been able to start and obtain an approval of a new I-140 under the EB-2 category.  Our office has handled a number of such EB-3 to EB-2 “upgrade” cases.  As a result, many of the EB-3 India applicants are now EB-2 India applicants, resulting in delay in the movement of EB-2 India priority dates.   We would be happy to analyze your EB-3 case and help you if you can “port” it to EB-2 – please contact us for a free initial consultation.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of April 30, 2010.  They are as follows:

• Regular processing: July 2009.  DOL is processing PERM applications with priority dates in July of 2009.  This suggests that there is very slight forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: April 2008.  The processing time has not changed over the past few months.  Accordingly, audited PERM processing times remain at approximately 24 months.
• Appealed applications: November 2007.  There is no movement this month in this category over the past few months.  Accordingly, PERM appeals take approximately 28 months.

We 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 announcement.

The Congressional Research Service (“CRS”) has released two recent reports which seek to analyze the extent of undocumented aliens in the U.S. and on the permanent residency (“green card”) programs.  In a series of articles, we will comment on the CRS reports with this article focusing on the unauthorized aliens in the U.S..  Both reports are helpful in providing some current information on the state of the U.S. immigration system and on the conflicting priorities which are likely to be part of the new comprehensive immigration reform, if and when it happens.

CRS Report on Unauthorized Aliens

The CRS report on unauthorized aliens seeks to describe and analyze the population of foreign nationals who are not authorized to be in the U.S.  By definition, such statistics are difficult to obtain, yet, the report does a good job in trying to put a profile on the population of unauthorized aliens.

Numbers.  The number of unauthorized aliens is not clear – according to recent estimates by the Department of Homeland Security (DHS), approximately 10.8 million unauthorized aliens were living in the United States in January 2009.   Using different sources, the Pew Hispanic Center has estimated the March 2008 unauthorized resident population at about 11.9 million.

Date of Arrival.  Most of the unauthorized aliens currently in the U.S. (29%) came between 1995 and 1999.  28% came between 2000 and 2004.  Only 8% came to the U.S. between 2005 and 2008.

Country of Origin. Mexico has historically been the greatest source country for unauthorized migration to the United States. According to DHS, there were an estimated 6.7 million unauthorized aliens from Mexico residing in the United States in early 2009, representing 62% of the total unauthorized resident population at the time. DHS further estimates that there were 8.5 million unauthorized aliens living in the United States in 2009 from North America, which includes Mexico as well as Canada, the Caribbean, and Central America (79% of the total). According to the DHS analysis, South America accounted for 0.7 million unauthorized aliens in 2009, yielding a combined North America and South America total of 9.2 million (85% of the total unauthorized resident population). Asia accounted for an additional 1.0 million unauthorized aliens.

U.S. State of Residence.  California is home to more unauthorized aliens than any other state (24% according to DHS). DHS and the Pew Hispanic Center estimate that about one quarter of the U.S. unauthorized alien population in January 2009 and March 2008, respectively, was living in California.  DHS and the Pew Hispanic Center also identify the same next three top states of residence for unauthorized aliens (in order from highest to lowest unauthorized population: Texas – 16%, Florida – 7%, and New York – 5%).

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.  As of April 27, 2010, USCIS has received approximately 16,500 H-1B petitions counting toward the 65,000 cap (a weekly increase of 475). Similarly, as of April 27, there were 6,900 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 160).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that after there was a very small weekly increase in the number of H-1B filings for both the regular and Masters’s caps.  As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.