Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for April, 2011

FY2012 H-1B Numbers Update – 8,000 Regular and 5,900 Masters Cap Visas Used (April 22, 2011)

USCIS released the weekly information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of April 22, 2011, USCIS has received approximately 8,000 H-1B petitions counting toward the 65,000 cap (an increase of 2,100 over the last two weeks).  Similarly, as of April 22, there were 5,900 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 1,400 over the last two weeks).

H-1B Quota Trends – Slow Rate of Filings; H-1B Caps Are Likely to Remain Open for Several Months

The numbers, as reported over the past week, show that the rate of H1B filings is significantly slow.  It is still early in the H-1B filing season to draw any reliable conclusions on how long the cap would remain open; however, given the rate of filings for the past three weeks since the H-1B cap opened, it is likely that the H-1B cap would remain open well into the rest of the year, and perhaps even well into 2012.  .

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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Current PERM Processing Dates and Times (as of April 25, 2011)

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 April 25, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — up to two (2) months.  Also, it is important to note the significant (9 months net) improvement in the PERM audit processing times.  The processing times, as reported by DOL, are as follows:

  • Regular processing: March 2011.  DOL is processing PERM applications with priority dates in March of 2011.  This suggests that there is a slight delay in the regular PERM processing (compared to one (1) months in February).   Accordingly, regular PERM processing times should be between one and two months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: December 2009.  DOL is processing PERM audits which have a priority date of December 2009.  This is a notable improvement in this category in comparison to prior months.   In comparison with the February 2011 PERM report, this category’s processing time has advanced (improved) by a net of nine (9) months from January 2009 to December 2009.   Accordingly, audited PERM applications are processed approximately 17 months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
  • Appealed applications: September 2008.  DOL is processing PERM appeals which have a priority date of September 2008.   There is some slight improvement in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30 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).


We continue to praise DOL as it has done a terrific job in eliminating the PERM backlog from 9-10 months an year ago to as little as a few weeks today.   We also welcome the significant improvement in PERM audit processing times.  At the same time, however, it is disappointing to see that the appealed queues move very slowly forward or remain unchanged.  We hope that DOL, after being able to consistently review regular PERM cases on a 2-8 weeks 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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Special Registration Program (NSEERS) Ends Effective Today (April 28, 2011)

The Department of Homeland Security (DHS) has announced that the National Security Entry-Exit Registration System (NSEERS) will be eliminated effective April 28, 2011.    See the Federal Register notice and WSJ article.


The National Security Entry-Exit Registration System, NSEERS, required individuals from more than 20 predominantly Arab countries to register with the government on arrival and departure from the U.S.    Until today, nationals of Afghanistan,  Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq,  Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan,  Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab  Emirates, and Yemen had to register every time they entered or left the U.S. at a border post.

The manual process required about 30 minutes of additional inspection at a port of entry for those arriving on nonimmigrant visas. Visitors had to register again on exiting the country.

DHS Rationale for Ending NSEERS

According to DHS, the main reason for ending NSEERS is that since the NSEERS requirements were established, DHS has created a number of additional procedures and safeguards which, in effect, duplicate NSEERS’ need for manual registration upon entry into the U.S.

According to DHS,

Over the past six years, the Department of  Homeland Security (DHS) has implemented several new automated systems  that capture arrival and exit information on nonimmigrant travelers to  the United States, and DHS has determined that recapturing this data  manually when a nonimmigrant is seeking admission to the United States  is redundant and no longer provides any increase in security. DHS,  therefore, has determined that it is no longer necessary to subject  nationals from these countries to special registration procedures, and  this notice deletes all currently designated countries from NSEERS  compliance.

For example, the US-VISIT program, in effect since 2004, collects entry and exit information and collects biometrics, to be compared with other government records.   CBP also requires passenger manifests to be provided for passengers arriving by air or sea into the U.S.  There are also a number of international data-sharing agreements, which allow DHS to do better analysis of aliens applying for admission in to the U.S.


As a result of the DHS rule, nonimmigrant  nationals and citizens of these countries are no longer required to  comply with the requirements of 8 CFR 264.1(f), including the  requirement that they exit through designated ports of entry.  Accordingly, nationals and citizens from these countries are no longer  subject to the NSEERS registration requirement and DHS will  no longer register aliens under NSEERS effective on April 28, 2011.

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FY2012 H-1B Numbers Update – 5,900 Regular and 4,500 Masters Cap Visas Used (April 8, 2011)

The H-1B season is well underway and USCIS just released the first “official” FY2012 update on the number of cap-subject H-1Bs filed since April 1 for both the Vermont and California Service Centers.  As of April 8, 2011, USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap.   This count means that as of April 8, there are 59,100 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general (regular) cap.

Similarly, as of April 8, there were 4,500 H-1B visas filed subject to the U.S. Masters cap (which has 20,000 limit).  This means that as of April 8, there are approximately 15,500 visas left under the U.S. Masters H-1B cap.

Comparison to the Last H-1B Season (FY2011)

Our office keeps detailed statistics of the previous H-1B filing seasons, and we are able to make comparisons with prior H-1B years in an effort to estimate demand and when the H-1B caps may be reached.  While it is too early to provide an estimate of when the H-1B cap would be reached for this fiscal year, all indications are that the cap would remain open for at least 6-8 months.

Last year, during the FY2011 H-1B filing season, by April 8th, there were $13,500 regular cap H-1B petitions filed.   This is almost three times as much as this year’s April 8 indicator.    Also, last year’s April 8th count of Master’s H-1B cap filing was 5,600, compared to this year’s count of 4,500.   Based on this information, and assuming there is no dramatic increase in the rate of economic recovery, we anticipate that this year’s H-1B season would extend for at least 6-8 months.

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience.  So early in the process for this year, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.  You may want 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 FY2012 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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May 2011 Visa Bulletin – EB-2 India Advances; FB1 and FB2B Unchanged; Future Visa Bulletin Predictions

The U.S. State Department just released the May 2011 Visa Bulletin which is the eighth Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the forward movement in EB-2 India (after eight months of no movement) and the continued (but slow) slow forward movement in FB2A (after few significant backward movements).

Summary of the May 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the May 2011 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 August 1, 2006, while EB-2 India moves forward (for the first time in 8 months) by seven (7) weeks to July 1, 2006.
  • EB-3 ROW and EB-3 Philippines move forward by one (1) months to August 22, 2005, EB-3 China  moves forward by six (6) weeks to April 15, 2004, while EB-3 India  moves forward by one (1) week to April 15, 2002.  EB-3 Mexico moves forward by four (4) months to September 8, 2004.
  • The “other worker” category remains unchanged at  April 22, 2003 for China.  It moves forward by six (6) weeks to September 8, 2003 for ROW, Mexico and Philippines.  It moves forward by one  (1) week to April 15, 2002 for India .

Summary of the May 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the May 2011 Visa Bulletin with respect to family-based petitions:

  • FB1 ROW, China and India remain unchanged at May 1, 2004.  FB1 Mexico moves forward by two (2) weeks to March 1, 1993.  FB1 Philippines moves forward by three and a half (3.5) months to July 15, 1995.
  • FB2A moves forward by nine (9) weeks to June 8, 2007 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by five (5) months to January 1, 2007.
  • FB2B ROW, China and India remain (again) unchanged at April 15, 2003.  FB2B Mexico moves forward by two (2) weeks to August 1, 1992.  FB2B FB2B Philippines moves forward by three (3) months to March 1, 2000.

Slow Movement  for Employment-based Petitions, Except EB-2 India; No (or Minor) Movement in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although we have started seeing notable movement in the EB-2 India category after eight months of no activity.  The EB-2 India movement is due to the carryover of visa numbers from the EB-1 category (also see note below).    Unfortunately, EB-3 India moved forward by only one  week (in comparison to the last two visa bulletins when it advanced by three weeks per month).

We continue to see the FB2A category move forward (by two months), after the significant retrogression over the past several months.  We wish to reiterate that the forward movement in FB2A is expected to be slow over the next  few months, according to indications from the State Department.   Unfortunately, due to strong demand, the FB1 category remains unchanged, after it retrogressed by 8 months last month.  This is due to heavy demand in the FB1 category which is expected to continue and further lack of movement (or backward movement) in FB1 is possible.

Prediction for Visa Number Availability for the Upcoming Months


According to the State Department, demand in the EB-1 category has been “extremely low” and, as a result, EB-1 is expected to remain current.  Similarly, EB-2 ROW is expected to remain current, but the demand in EB-2 India and EB-2 China is expected to continue to weigh on these two categories.   The State Department’s “best case scenario” for the upcoming few months is as follows (the estimates below are per month):

  • EB-2 China – none to three weeks expected through July; August/September estimate not possible at this time;
  • EB-2 India – one or more weeks, possibly followed by additional movement if demand remains stable;  August/September estimate not possible at this time;
  • EB-3 ROW – three to six weeks;
  • EB-3 China – one to three weeks;
  • EB-3 India – none to two weeks;
  • EB-3 Mexico – some forward movement, but difficult to predict; and
  • EB-3 Philippines – three to six weeks.
Note on EB-2 India.
It is important to note that the movement in EB-2 India, while notable, is an attempt by the State Department to estimate the demand in this category because the number of applicants who may be “upgrading” or “porting” their priority date from EB-3 India to EB-3 India is unknown.  Accordingly, the State Department is trying to advance the dates faster than normal to evaluate the demand and, if the demand is high, the EB-2 movement may slow or even retrogress.
The extremely high level of demand during the first few months of FY-2011 resulted in the retrogression of most worldwide cut-off dates in January or February.  While most of these cut-offs have begun to advance slowly, heavy demand in the Family First preference has caused a further retrogression for May.  At this time it is not possible to predict the rate of forward movement, but some movement is anticipated in most categories for the remainder of the fiscal year.
Further Updates and News

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 May 2011 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions on when a particular priority date may become current.

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Government Shutdown and Immigration: (How) Will It Affect Me?

Important Update: April 9, 2011: Short-term Government Funding Bill Passed.

As it appears as of the time of this article, the U.S. federal government is likely to shut down, we would like to provide some information as to how the shutdown would affect the immigration cases pending or to be filed shortly.   Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on Monday if a deal is not reached on the federal government’s budget.   (See latest Google News)

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  Since the last time this kind of shutdown happened was 15 years ago, there are no clear rules and guidance as to what would remain open and what would close.  With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.


Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”

Department of State – No (or Slow) Visa Applications; Visa Bulletin Uncertain; NVC Processing Could Continue

The Department of State (DOS) is expected to to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad.  As a result, no new visas are expected to be issued and visa application interviews are likely to be cancelled (or postponed).   U.S. passport applications will not be accepted and processing of submitted applications is likely to be put on hold.

As a comparison, according to data from the Congressional Research Service Report, during the last shutdown in 1995,  approximately 20,000 – 30,000 visas went unprocessed each day and 200,000 applications for U.S. passports went unprocessed.

It is unknown at this point, however, whether the May 2011 Visa Bulletin, which is expected to be issued over the next few days and which is issued by the Department of State, will be affected.   We hope that it would be released before Monday when a possible shutdown would take effect.   Many of our readers are eagerly expecting the May 2011 Visa Bulletin because it is expected to bring some substantial forward movement to the EB-2 India category.

With respect to immigrant visa (family, employment, etc.) cases pending at the National Visa Center (NVC), it is possible that they would continue to be processed as NVC’s staffing funding was under contract.

Department of Labor – LCA, PERM and Audits

It is unclear exactly how the Department of Labor would be affected.   We expect that ETA Form 9035 LCA filings, used most often in connection with H-1B filings, to be affected.  This may mean that no new LCAs can be filed (and those filed may be put on hold) and, as a result, new H-1B filings can be delayed.

ETA Form 9089 PERM labor certifications are expected to be similarly affected.  It is unclear whether the system allowing new PERM labor certification filings would be shut down; however, we expect that processing of PERM labor certification cases to stop during a shutdown.  This holds true for processing of PERM audits and appeals at the BALCA.


While the full extent of the federal government shutdown (if it were to happen over the next day or two) is unknown; we can anticipate some disruptions to government services affecting immigrants.  Perhaps more severe would be the disruptions to visa applications at U.S. Consular Posts abroad, followed by delays or inability to file H-1B and/or PERM labor certifications.   While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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Texas Service Center Premium Processing Unit Sends Old I-140 Receipt and Approval Email Notices (Updated)

It may seem like an April Fools Day joke at first sight, but apparently it is not.  The Texas Service Center has been issuing and emailing premium processing receipt and approval notices for I-140 cases filed as far back as April 2010.

Example of I-140 Email Notice

The emails (delivered on April 1, 2011) look something like this:

Receipt Notices

The Texas Service Center has received the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Date Received: 05/04/2010
Petitioner: PETITIONER, INC.
Priority Date: To Be Determined

The Form I-797 Receipt Notice will follow in the mail.

Approval Notices

The Texas Service Center has approved the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Priority Date: 06/01/09

DOB: 0X/0X/71
Classification: E21

The form I-797 Approval Notice will follow in the mail.

Please note that this e-mail message is being sent as a
courtesy and cannot be used as evidence of nonimmigrant
status. Nor can this message be used as evidence to procure
an immigrant visa.

Pending and Approved I-140 Cases Seem to be Unaffected

These notices seem to be for cases previously filed with the TSC’s premium processing unit for which email receipt and approval notices were never issued.   Our office has handled a number of TSC filings, including in the relevant period of the past 12 months, and we have never received the (expected) I-140 receipt or approval notices.   Looks like they are arriving now, months after the cases have been processed and approved.  To our knowledge, paper I-140 receipt and approval notices from TSC have not been affected.

Explanation of the Old I-140 Email Notices

There has not been an official explanation by TSC or USCIS yet.  An unconfirmed theory for the reason behind this sudden deluge of I-140 receipt and approval email notices is a glitch with TSC’s email servers.  It is possible that the outgoing email server at TSC was misconfigured and was holding all outgoing I-140 receipt and approval notice emails.   In an interesting coincidence, the problem seems to have been “fixed” on April 1st.

Update from USCIS

April 1, 2011, 5:12 pm.   USCIS has more or less confirmed our theory that this sudden outburst of delayed emails was caused by software.

“The program that sends the automated emails on premium processing cases has been off-line for some time. A new version of the program was deployed today and it appears to be catching up on emails for older cases that didn’t receive any email notifications. For cases already completed, the email notifications can be disregarded.

We are working with our Information Technology colleagues to research and confirm if emails on recent / current cases are also being queued for generation.

Sorry for any confusion this may have caused.”

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