Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for November, 2010

FY2011 H-1B Numbers Update – 50,400 Regular and 18,400 Masters Cap Visas Used (November 26, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of November 26, 2010, USCIS has received approximately 50,400 H-1B petitions counting toward the 65,000 cap (an increase of 2,600 over the past two weeks).  Similarly, as of November 26, there were 18,400 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 1,000 over the past two weeks).

H-1B Quota Trends – Slight Increase in Regular and Masters’ Cap Filings

The numbers, as reported over the past week, show a slight increase over the past two weeks compared to the weeks prior.  The regular cap H-1B filings have remained between 1,000-1,500 per week and the trend continues.  The U.S. masters cap H-1B filings have been between 300-500 over the past few weeks and as a result, the 1,000 increase over the past two weeks seems to suggest an increase in the rate of filings.   As the end of the H-1B regular and masters cap quotas start to come close, we expect that the numbers of regular and master’s cap filings to increase over the next few weeks.

H-1B Quota Expected to be Reached in Early 2011

With the current pace of filings, or about 1,000-1,500 regular H-1B cap filings per week and 400-500 master’s cap per week, we estimate that the H-1B cap would be reached in 7-10 weeks, or sometime in early 2011.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, and as the end of the H-1B cap is in sight, it is very likely that the pace of H-1B filings will increase and the cap will be reached fast.  In prior years, the H-1B filings increase over the past weeks of the H-1B cap and we expect the same this year.

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.

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Increased Rate of ETA 9089 PERM Labor Certification Denials – Fact or Fiction?

One of our major practices is the processing of employment-based permanent residency applications, most of which require an ETA 9089 PERM labor certification.  As a result, we handle a number of PERM labor certifications filings, appeals and other related matters.  Our office has been receiving an increasing number of inquiries about possible increase in PERM denials and/or audits.

Observations from Our Practice

We take special measures to ensure that each PERM application we file is prepared extremely carefully and that any potential PERM audit or denial “red flags” have been addressed.  These include carefully checking the recruitment periods and deadlines, prevailing wage dates, job duties and requirements, and salary, among others.  The Department of Labor (DOL) has started issuing more denials on clerical mistakes – for example, for omitting (harmlessly) specific text from the required PERM notice of posting or from failing to properly document certain steps of the recruitment.

PERM labor certification applications are very technical in nature and require very close following of the relevant regulations and procedures.  By following these carefully, we have been able to secure great results for our clients and we have not noticed increase in PERM audits or denials based on our direct experience.

DOL Comments – Increase in PERM Denials

Our direct experience of not seeing a notable increase in PERM audits or denials is, on the other hand, contradicted by DOL.  During October 28, 2010 Stakeholders Meeting, DOL has acknowledged that  there are increased denials.   According to the meeting minutes, DOL confirms that there is an increase in the PERM denials:

DOL indicated that the increase in PERM denials is due to a number of factors, including staffing changes and an increase in the number of cases filed. At the end of September 2010, DOL moved from multiple staffing contracts, which covered positions ranging from analysts to network support, to one consolidated, performance-based contract. The new capacity has enhanced processing in a variety of areas, and has resulted in increased production. With the increase in staffing, DOL now has the capacity to deal with issues that it could not deal with previously, and the consolidated contract has resulted in higher standards. In addition, DOL indicated that an increase in the number of PERM filings over the past months has resulted in a greater number of denials.

It is interesting that DOL cites the reason for the increase in PERM denials the more robust staffing and better training to its officers.  Essentially, DOL acknowledges that it would continue paying close attention to more of the PERM requirements, including enforcing the clerical requirements (some of which “harmless”) which have caused some recent denials.

Responding to Audits – Failure May Trigger Debarment

In addition to the rate of denials, DOL has specifically addressed the failure of some employers to respond properly or at all to audit notices.  DOL has confirmed that it has seen increased number of employers fail to respond or fail to adequately respond to a PERM audit notice.

DOL has indicated that with its improved staffing it will start looking at these failures to (adequately) respond to a PERM audit notice and would start to enforce more strictly punishments for such failures.   DOL has specifically warned that as a result of failures to report to audit notices,  the number of revocations (of already approved PERMs) and employer debarment proceedings will increase.

Conclusion

DOL’s recent comments do in fact confirm that the number of PERM denials has increased.  As DOL cites better staffing and higher standards for the reason of the increased denials, it is obvious that the increase in PERM denials is caused mainly by strict enforcement or the current standards.  We should expect to see more PERM denials for clerical and harmless errors and for failure to follow all of the PERM guidelines and regulations.

Also, as a result of DOL’s acknowledgment that it would increase the number of revocation and debarment proceedings against employers for failure to (adequately) respond to audit notices, it becomes critically important for employers who receive audit notices to prepare a good and timely response.

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Updates from BALCA regarding PERM Appeals

What is BALCA?

The Board of Alien Labor Certification Appeals (BALCA) is an administrative body which reviews mainly denials of PERM labor certification cases but it also handles a number of Department of Labor review cases.   With respect to PERM denials, BALCA is the appellate body which reviews appeals for PERM denials.

BALCA currently has five administrative judges but there are plans in 2011 to increase the number of administrative law judges who will help handle the increasing volume of PERM denial appeals.

BALCA Caseload and Processing Times

Caseload Statistics

BALCA has provided some useful statistics about their current and historic (over the past few years) caseload.

  • During the fiscal year ending September 30, 2008, BALCA had docketed 254 PERM cases with an additional 164 pre-PERM cases.
  • During Fiscal Year 2009, BALCA docketed 488 appeals.
  • During Fiscal Year 2010, BALCA docketed 1,656 appeals, more than tripling the FY2008 volume.
  • As of October 18, 2010, BALCA reports that there are 1,215 PERM appeals pending.

BALCA Procedures

Before posting the BALCA processing times, a brief overview of the procedural history of a PERM appeal is in order.   First, it should be noted that BALCA processing times are separate than the PERM processing times.  Once a PERM is denied by the DOL Certifying Officer, the employer has an opportunity to submit a Motion to Reconsider with the Certifying Officer.   If the employer decides to appeal, a timely Motion to Reconsider must be filed with the DOL Certifying Officer.  The Certifying Officer, then, has an opportunity to review the motion and change his or her mind on the PERM denial.  If the Certifying Officer affirms the PERM denial, the employer is then given an opportunity to submit a BALCA appeal.

Once a case is docketed, BALCA sends a notice to the employer requiring submission of a statement of intent to proceed within 15 days and sets a 45-day deadline to submit appellate brief.

Processing Times

Once a case is submitted and docketed at BALCA, the average processing time until a decision is reached for FY2010 was 120 days.    Factoring the docketing period and including any employer-required documents, such as intent to proceed and appellate brief, BALCA reports processing time of 6 months.  This does not include cases which are grouped and held pending a decision on a related case.

BALCA reports that once cases are accepted, they are generally processed in a general “first-in first-out” order based on the docketing date (and not based on priority date).

BALCA and the Capitol Immigration Law Group

Our office handles a number of requests for reconsideration and BALCA appeals on PERM denials.  PERMs are being denied on a number of reasons, some of which are difficult to appeal.  Also, and unfortunately, a DOL has started denying more PERM cases on the basis of clerical (and “harmless”) omissions.  Our office can help you review your PERM denial and, if necessary, assist in the appeal process.  Please contact us if we can be of any help.

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FY2011 H-1B Numbers Update – 47,800 Regular and 17,400 Masters Cap Visas Used (November 12, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of November 12, 2010, USCIS has received approximately 47,800 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 over the past week).  Similarly, as of November 12, there were 17,400 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 200 over the past week).

H-1B Quota Trends – Slight Relative Decrease in Regular and Masters’ Cap Filings

The numbers, as reported over the past week, show a slight decrease over the past week compared to the weeks prior.  We believe that this decrease is attributed to the fact that November 11 was a federal holiday. We expect that the numbers of regular and master’s cap filings to return to their anticipated 1,000-1,500 (for regular) and 300-500 (for master’s cap) weekly numbers next week.

H-1B Quota Expected to be Reached in Early 2011
With the current pace of filings, or about 1,000-1,500 regular H-1B cap filings per week and 400-500 master’s cap per week, we estimate that the H-1B cap would be reached in 10-15 weeks, or sometime in early 2011.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

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.

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December 2010 Visa Bulletin – Minor Forward Movement in EB, No Movement for EB India, Notable Forward Movement in FB2A

The U.S. State Department just released the December 2010 Visa Bulletin which is the third Visa Bulletin for the FY2011 fiscal year.   As anticipated and as we wrote recently, following our meeting with Charles Oppenheim, there is not much movement across the employment-based categories.  EB India, for example, does not see any movement this month.  Also, some family-based categories (FB2A) have notable forward movement.

Summary of the December 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the December 2010 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 China moves forward by one (1) week to June 8, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.
  • EB-3 ROW moves forward by one (1) month to February 22, 2005, EB-3 China  moves forward by two (2) weeks to December 8, 2003, while EB-3 India  remains unchanged at January 22, 2002.  EB-3 Mexico moves forward by fourteen (14) months to July 1, 2002 and EB-3 Philippines moves forward by one (1) month to February 22, 2005.
  • The “other worker” category moves forward by three (3) weeks to April 22, 2003 for ROW and China and Philippines.  It remains unchanged at January 22, 2002 for India.  Mexico moves forward by fourteen (14) months July 1, 2002.

Summary of the December 2010 Visa Bulletin – Family-Based (FB)

Below is a summary of the December 2010 Visa Bulletin with respect to family-based petitions:

  • FB1 ROW, China, India and Philippines remain unchanged at February 15, 2006.  FB1 Mexico moves forward by one (1) week to January 1, 1993.
  • FB2A ROW, China, India and Philippines move forward by two (2) months to August 1, 2010, while FB2A Mexico remains unchanged at March 1, 2010.
  • FB2B ROW, China and India remain unchanged at June 1, 2005.  FB2B Mexico remains unchanged at June 22, 1992 and FB2B Philippines moves backwards by more than two years to March 1, 2000.

Slow Movement  for Employment-based Petitions and Notable Forward Movement in Family-based Petitions

The forward movement across many employment and family-based categories continues, although the movement in the employment-based categories may be very disappointing to many, especially in the the India category which did not move at all this month.   The December 2010 movement confirms the observations and the predictions which we published on September 23 after our meeting with Charles Oppenheim.  According to Mr. Oppenheim, the employment-based categories are expected to inch forward slowly — often by one or two weeks per month — while the family-based categories, especially FB2A is expected to make significant forward movement.

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 December 2010 Visa Bulletin.

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AAO Processing Times Report (November 1, 2010)

Our office has established a reputation as one of the premier practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

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.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of November 1, 2010.

Among the most notable AAO processing times:

  • H-1B appeal takes 15 months (increase by one month compared to our last report as of October 1);
  • I-140 EB1 Extraordinary Ability takes 9 months (increase by one month), Multinational Manager or Executive takes 16 months (increase by one month) while EB1 Outstanding Professor or Researcher category takes 6 months or less (no change);
  • I-140 EB2 (Advanced Degree) takes 24 months (increase by one month) while EB2 (NIW) takes 10 months (increase by one month); and
  • I-140 EB3 Skilled Worker takes 27 months (increase by one month) while EB3 Other Worker takes 20 months on appeal (decrease by one month).

Read the full AAO Processing Times report.   If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

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FY2011 H-1B Numbers Update – 46,800 Regular and 17,200 Masters Cap Visas Used (November 5, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of November 5, 2010, USCIS has received approximately 46,800 H-1B petitions counting toward the 65,000 cap (an increase of 1,200 over the past week).  Similarly, as of November 5, there were 17,200 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 500 over the past week).

H-1B Quota Trends – Slight Upward Trend in Regular and Masters’ Cap Filings

The numbers, as reported over the past week, show a slight increase over the past week.  Last two weeks’  increases of 1,500 regular cap cases marks a notable increase compared to the numbers reported on October 15th (900).   The master’s cap filings have also picked up slightly and remain somewhat consistent at approximately 500 per week.

H-1B Quota Expected to be Reached in Early 2011

With the current pace of filings, or about 1,000-1,500 regular H-1B cap filings per week and 400-500 master’s cap per week, we estimate that the H-1B cap would be reached in 10-15 weeks, or sometime in early 2011.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

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.

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Current PERM Processing Dates and Times (as of September 31, 2010)

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 processing dates as of September 31, 2010.  Most notable is the decreased (or improved) processing time for regular PERM applications — down to 2-4 months now.  The processing times, as reported by DOL, are as follows:

  • Regular processing: July 2010.  DOL is processing PERM applications with priority dates in July of 2010.  This suggests that there is substantial notable forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately 2-4 months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  We have had recent PERM applications approved in as little as 6 weeks.
  • Audited applications: August 2008.  DOL is processing PERM audits which have a priority date of August 2008.  There is no movement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 24-26 months after the initial PERM was filed and the priority date established.  This PERM processing queue is moving very slowly and is, unfortunately, not getting any better.
  • Appealed applications: March 2008.  DOL is processing PERM appeals which have a priority date of March 2008.   There is some delay in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30-32 months after the initial PERM was filed and its priority date established.
  • “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 (see above for processing times).

Conclusion

DOL has done a terrific job in eliminating the PERM backlog from 9-10 months an year ago to as little as 2-4 months today.   At the same time, however, it is disappointing to see that the audited and appealed queues move very slowly forward or remain unchanged.  We hope that DOL, after being able to consistently review regular PERM cases on a 2-4 months timeline, would turn its attention to appeals and audits and decrease the processing times for those cases as well.

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.

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FY2011 H-1B Numbers Update – 45,600 Regular and 16,700 Masters Cap Visas Used (October 29, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of October 29, 2010, USCIS has received approximately 45,600 H-1B petitions counting toward the 65,000 cap (an increase of 1,300 over the past week).  Similarly, as of October 29, there were 16,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 500 over the past week).

H-1B Quota Trends – Slight Upward Trend in Regular and Masters’ Cap Filings

The numbers, as reported over the past week, show a slight increase over the past week.  Last two weeks’  increases of 1,500 and 1,300 regular cap cases, respectively, marks a notable increase compared to the numbers reported on October 15th (900).   The master’s cap filings have also picked up slightly to approximately 500 per week.

H-1B Quota Expected to be Reached in Early 2011

With the current pace of filings, or about 1,000-1,500 regular H-1B cap filings per week and 400-500 master’s cap per week, we estimate that the H-1B cap would be reached in 10-15 weeks, or sometime in early 2011.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

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.

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Reminder: USCIS Increases Filing Fees on Nov. 23

We wrote extensively in the past for the planned and the announced USCIS fee increase which is set to take effect on November 23rd for all applications filed or postmarked on or beyond this date.   For some filings, the fee increase is very minor (and for some there is even a fee decrease!).  However, due to the substantial fee increase in some case categories, we wanted to provide a reminder of the new fees and provide an opportunity to our clients and readers to prepare and file their cases before the new fees go into effect.

Increases (and a few decreases) in USCIS Filing Fees

A full schedule of the new fees is set forth in page 4 the final rule PDF document or in this table.  Among the most notable increases are:

  • Form I-90 (replacement of green card) filing fee increases from $290 to $365;
  • Form I-129 (used for H, L, P, O visas) filing fee increases from $320 to $325;
  • Form I-129F (used for fiancee visas) filing fee decreases from $455 to $340;
  • Form I-130 (family-based immigrant visas) filing fee increases from $355 to $420;
  • Form I-131 (reentry permits and advance parole documents) filing fee increases from $305 to $360;
  • Form I-140 (employment-based immigrant visas) filing fee increases from $475 to $580;
  • Form I-290B (motion to reopen/appeal) filing fee increases from $585 to $630;
  • Form I-485 (adjustment of status) filing fee increases from $930 to $985 (for children under 14 when filing with parent the fee increases from $600 to $635);
  • Form I-539 (change or extension of status) filing fee decreases from $300 to $290;
  • Form I-751 (removal of condition) filing fee increases from $465 to $505;
  • Form I-765 (work permit) filing fee increases from $340 to $380;
  • Form I-824 (action on approved petition, follow-to-join) increases from $340 to $405;
  • Form I-907 (premium processing) increases from $1,000 to $1,225;
  • Biometrics processing fee increases from $80 to $85.

Effective Date

All of these fee changes become effective on November 23, 2010.  All applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee.

Our Attorney Fees Remain Unchanged

Unlike USCIS, our fees remain unchanged and we are happy to help you prepare and file your case.  Please contact us if our office can be of any assistance.

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