Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for August, 2011

FY2012 H-1B Numbers Update – 29,000 Regular and 15,800 Masters Cap Visas Used (August 26, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of August 26, 2011, USCIS has received approximately 22,700 H-1B petitions counting toward the 65,000 cap (an increase of 6,300 over the previous four weeks).  Similarly, as of August 26 , there were 15,800 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 2,000 over the previous four weeks).

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

The numbers, as just reported for the past four weeks, show that the rate of filing of new cap-subject H1B filings is fairly slow, and remaining steady.  We have been noticing a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap and 500-700 in the US Masters H-1B cap.   Almost six months into this H-1B cap filing season, we can draw some (fairly) reliable conclusions on how long the cap would remain open: given the rate of filings for the past several weeks and 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 FY2012 quota, please contact us.

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EB-1 Processing Statistics

USCIS has provided some interesting statistics relating to the processing of Form I-140 petitions for classification of foreign nationals under the employment-based first (EB-1) category.    The statistics reflect the number of receipts, approvals, denials and RFEs issued during a fiscal year and are helpful in understanding general EB-1 adjudication trends.

The EB-1 Statistics

Texas Service Center is More Popular.  The Texas Service Center is clearly the more popular service center, judging by the number of filings.   It received between two and three times the amount of EB-1 applications filed with the Nebraska Service Center.  For example, the Texas Service Center received 9,981 EB-1 I-140 cases in FY2011 (until 19, 2011), while Nebraska received 3,811 for the same period.

Number of EB-1 Filings Remains Steady.  Because the FY2011 data is for the year until July 19, 2011 (or based on approximately 10 months), the overall number of filings in 2010 should end up being similar to the total number of EB-1 filings in 2011, when the reported EB-1 FY2011 numbers are calculated on yearly basis.

Comparison of the Rate of RFEs and Denials.   It is also interesting to note that in 2010 Nebraska had a significantly higher rate of RFEs and denials across all EB-1 categories compared to Texas.  For example, in 2010, Nebraska issued RFEs in 67% of the cases (Texas was at 26%) and denials in 36% (Texas was at 18%).   However, so far in 2011, Nebraska is generally at par with Texas.  So far in 2011, Nebraska issued RFE in 38% (Texas is at 29%) and denies 16% (Texas is at 13%).     It should be noted, however, that some of these numbers carry over from one fiscal year to another – for example, an RFE may be reflected in one year’s numbers, while a denial would be reflected during next year’s number simply because the denial was issued after the new fiscal year has started.   As a result, a scientifically-accurate comparison of percentages across fiscal years is not possible based on this data.

Conclusion

While we recognize that the EB-1 adjudication statistics reported by USCIS do not permit accurate calculation of percentage chances of RFE, denials and approvals, the numbers are very helpful nonetheless in understanding trends at the Texas and Nebraska Service Centers.    Based on these numbers, the Nebraska Service Center’s rate of favorable adjudications is inching closer to the Texas Service Center.   Also, we note that the rate of filings has remained steady over the past two years.

Our office handles a number of EB-1 filings in all subcategories and we are happy to review and assist with EB-1 cases.   Please feel free to contact us for review and analysis of EB-1 cases.

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DOL Temporarily Suspends Prevailing Wage Determinations: Impact on PERM and H-1B Filings

Many of our clients and readers are by now aware of the delays associated with the Department of Labor (DOL) processing requests for prevailing wage determinations.   Unfortunately, DOL has confirmed that they have temporarily suspended the processing of all regular prevailing wage determination requests until DOL meets its obligations under a court order to re-process approximately 4,000 H-2 B prevailing wage determinations.

Background of the Need to Reprocess H-2B Prevailing Wage Determinations

Pursuant to a June 15, 2011 ruling, the U.S. District Court for the Eastern District of Pennsylvania ordered DOL  to reissue approximately 4,000 H-2B prevailing wage determinations in order to accurately reflect the new H-2B wage rates that will apply for H-2B employment beginning on or after September 30, 2011 (the new government fiscal year). The June 15, 2011 court order is related to an August 30, 2010 decision in CATA v. Solis, where the District Court ordered DOL to put in place new H-2B prevailing wage rules.

DOL Effectively Suspends Review of All Regular Prevailing Wage Requests by Shifting All Resources

As of a few days ago, DOL has confirmed that they have shifted all of its relevant Office of Foreign Labor Certification (OFLC) resources towards complying with the June 15 court order.   By making this decision, in effect, DOL has temporarily suspended the processing of all non-court mandated prevailing wage determinations.   While it is possible that DOL would switch some of its resources back to processing regular processing prevailing wage determinations, it is possible that no prevailing wage requests would be processed until DOL clears the H-2B backlog.

A federal rule dated as of August 1, 2011 states that DOL should be able to process all H-2B prevailing wages by October 1, 2011.  DOL has also indicated that they plan on completing all 4,000 H-2B prevailing wages by August 31, 2011.   As a result, we should expect (somewhat) normal processing of prevailing wage determinations to return during the month of September.

PERM and H-1B Filings to be Affected and Possibly Delayed

As a result of the prevailing wage suspension, many PERM and H-1B cases are put on an temporary, but highly undesirable, hold.   Even if DOL returns to normal prevailing wage processing as soon as September 1, there would be a significant backlog of pending regular prevailing wage requests.    Many foreign nationals must file their PERM/H-1B applications in order to be able to fit within AC21 guidelines, expiring recruitment of other urgent reasons.    We hope that DOL would be able to designate and allow some prevailing wages to be processed in order to allow foreign nationals with deadlines to make timely filings.

Additionally, and assuming that DOL returns to normal processing in September, there would be a high number of prevailing wage determinations issued which, in a few weeks or a couple of months, would result in a higher than normal volume of PERM filings.   As a result, we expect that PERM processing times to increase over the next 4-6 months.

We would continue monitoring this situation and provide updates as they become available.   Please feel free to subscribe to our weekly newsletter or contact us if our office can be of any assistance.

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September 2011 Visa Bulletin – No Movement in EB-2 India/China; FB1 Remains Unchanged for Many; FB2A Advances by Four Months

The U.S. State Department just released the September 2011 Visa Bulletin which is the final Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the lack of any movement in the EB-2 China and EB-2 India categories, which have moved significantly over the past few months.  Also, FB2A moves forward by four months.

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

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

  • EB-1 remains current across the board.
  • EB-2 remains unchanged across the board: EB-2 ROW (Rest of World), Mexico and Philippines remain current while EB-2 China and EB-2 India are unchanged at April 15, 2007.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by three (3) weeks to November 22 , 2005, EB-3 China  moves forward by only one (1) week to July 15, 2004, while EB-3 India  moves forward by five (5) weeks to July 8, 2002.
  • The “other worker” category remains unchanged at  April 22, 2003 for China and at June 1, 2002 for India.  It moves forward by three (3) months to August 1, 2005 for ROW, Mexico and Philippines.

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

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

  • FB1 remains unchanged (again) for ROW, China and India at May 1, 2004.   It moves forward by one (1) week to March 15, 1993 for Mexico.  It also moves forward by 6.5 months to November 1, 2006 for for Philippines.
  • FB2A moves forward by over four (4) months to December 1, 2008 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by less than four (4) months to September 22, 2008.
  • FB2B ROW, China and India remains unchanged at July 1, 2003.  FB2B Mexico moves forward by one (1) month to November 1, 1992.  FB2B Philippines moves forward by over (3) months to March 22, 2001.

Slow Movement  for Employment-based Petitions; EB-2 India and EB-2 China Movement Slows Down; Substantial Forward Movement for FB2A; No Movement in FB1

The slow forward movement across many employment categories continues, as expected.   The movement in EB-2 India and China we have seen over the past few months has stopped, most likely due to heavy demand in these categories and due to the fact that this is the last Visa Bulletin for the fiscal year.   Positive news is that EB-3 India has  moved forward by over a month (for a second month in a row).

We continue to see the FB2A category move forward, after the significant retrogression over the past several months – this month by four weeks.   Unfortunately, due to strong demand, FB1 category remains unchanged, for a fourth month in a row, after it retrogressed by 8 months during the April 2011 Visa Bulletin.  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.

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 September 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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FY2012 H-1B Numbers Update – 22,700 Regular and 13,800 Masters Cap Visas Used (July 29, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of July 29 5, 2011, USCIS has received approximately 22,700 H-1B petitions counting toward the 65,000 cap (an increase of 2,200 over previous two weeks).  Similarly, as of July 29 , there were 13,800 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 1,000 over the previous two weeks).

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

The numbers, as just reported for the past two weeks, show that the rate of filing of new cap-subject H1B filings is fairly slow, and remaining steady.  We have been noticing a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap and 500-700 in the US Masters H-1B cap.   More than four months into this H-1B cap filing season, we can draw some preliminary conclusions on how long the cap would remain open: given the rate of filings for the past several weeks and 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 FY2012 quota, please contact us.

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USCIS Issues “Clarifications” for Entrepreneur Immigrants: Self-sponsored H-1B and EB-2 NIW May be Possible, EB-5 Streamlined

USCIS Director Alejandro Mayorkas just announced a number of initiatives intended to boost the ability of immigrant entrepreneurs to obtain immigrant benefits for themselves, as part of the Obama administration’s goal to boost hiring and jobs. Director Mayorkas has announced a number of initiatives and “clarifications” of existing temporary and permanent work visas which should make it easier for entrepreneurs to remain in the U.S.

The Problem Immigrant Entrepreneurs Face

A number of foreign national entrepreneurs face significant difficulties in obtaining permission to work and engage in the kind of entrepreneurship and job creation the economy needs.   Currently, the H-1B temporary work visa program is off-limits to many individual entrepreneurs, as a result of the January 8, 2010 Neufeld Memorandum which required each H-1B work visa petition to show that the petitioning employer has the right to control, including to hire and fire, the foreign national employee.   Most often entrepreneurs are the owners or have a controlling interest over a company, and the right to control in many cases cannot be shown.   Effectively, the Neufeld Memorandum prohibited H-1B self-sponsorship for foreign entrepreneurs.   For background, please see our prior articles relating to the Neufeld Memorandum.

Similarly, the permanent work visa program (or green card) limits the ability of foreign entrepreneurs to obtain benefits due to the lack of employer-employee relationship in many cases.    Other than the EB-5 category (see more below), in most cases, immigrant entrepreneurs must have a U.S. sponsor employer which can provide the employer-employee relationship, in a way discussed above.    Due to the fact that the EB-5 green card category requires an investment of $1 million, among other requirements, few foreign entrepreneurs qualify for it, at least at the initial stage of their endeavors.

Finally, the EB-5 category, as discussed above, has qualifying requirements and processing procedures which are not suitable for many small businesses.   The EB-5 category, in addition to having relatively high capital requirements, takes a long time.   Entrepreneurs who have the capital and decide to apply must go through several months of paperwork to find out whether their permanent residency visa is approved.   This uncertainty, and the possible inability to engage in employment in the U.S. during this time, make the EB-5 option difficult for many.

USCIS Clarifications:  H-1B Self-Sponsorship Possible With Specific Corporate Governance Structure

As a result of increased criticism and hoping to spur job creation and growth, USCIS has clarified the rules with respect to H-1B temporary work visas for the benefit of foreign entrepreneurs.   An H-1B petition would still have to show the employer-employee relationship between the sponsor entity and the entrepreneur; but in cases where the foreign entrepreneur is also an owner, USCIS has clarified that this can be done by structuring the company’s corporate governance in a way to allow a board (or similar entity) to exercise control over the entrepreneur (and employee).    For example, if there is a board of directors (or a committee of the board) which has the right to control (including to hire and fire) the entrepreneur-employee, then USCIS, under the new clarification, should deem that the right to control has been established.

USCIS has provided a “Frequently Asked Questions” document which seeks to provide additional information and answers to common questions.    It makes clear, however, that the Neufeld Memorandum remains unaffected.

USCIS Clarifications:  EB-2 NIW Self-Sponsorship Possible When Job Creation/Growth Can be Shown

Additionally, with respect to self-sponsored EB-2 National Interest Waiver (NIW) permanent visa category, the government has clarified that a foreign entrepreneur may qualify for a self-sponsored EB-2 NIW category if he/she can show that the business enterprise would benefit the national interest of the United States.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

Prior to the current clarification, the EB-2 NIW category was used most often by professionals whose work can be shown to benefit the U.S. by providing a specific benefit or service.    Now, USCIS has clarified that job creation and economic growth, either direct or indirect, could be considered to be in the U.S. national interest and could allow foreign entrepreneurs to obtain permanent residency under the EB-2 NIW category.

USCIS has published a “Frequently Asked Questions” document on its website clarifying this new approach.  USCIS has indicated that they will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies.

Changes to Streamline the EB-5 Investor Green Card Program

The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed a number of changes to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application.   USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.   Hopefully, this would provide the kind of fast processing and additional certainty about the process many foreign investor entrepreneurs need.

Premium Processing to Expand to Include EB-1 Multinational Executives and Managers

Additionally, USCIS has announced that it intends to reinstate the premium processing option for EB-1 I-140 petitions filed on behalf of multinational executives and managers.    A processing time of 15 calendar days under the premium processing option would address a frequent concern by foreign managers and executives that it may simply take too long for them to be able to join a business operation in the U.S.  The USCIS announcement is unclear on the effective date of this change, but we will monitor the availability of this option and provide an update.

Conclusion

We welcome USCIS Director Mayorkas’s announcements and welcome the “clarifications” and changes he has just announced.   At the same time, we realize that these “clarifications” must be properly communicated to the field officers and adjudicators so that when a properly prepared self-sponsorship H-1B or EB-2 NIW petition is filed, it is given the due benefit under the new guidance.   Our office will be monitoring new developments on this topic and we would be providing relevant updates on our website and via our weekly newsletter.  In the meantime, please do not hesitate to consult us if we can be of any assistance.

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