Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for December, 2011

AAO Processing Times (December 1, 2011)

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  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 processing 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 December 1, 2011.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal takes 22 months (no change compared to our last report as of October 1, 2011);
  • L-1 appeal takes 22 months (improvement, or decrease, of one month);
  • I-140 EB1 Extraordinary Ability takes 16 months (no change), Multinational Manager or Executive takes 21 months (increase of one month) while EB1 Outstanding Professor or Researcher category takes 10 months (increase of one month);
  • I-140 EB2 (Advanced Degree) takes 32 months (increase by three months) while EB2 (NIW) takes 12 months (decrease of one month); and
  • I-140 EB3 Skilled Worker takes 35 months (increase of one month) while EB3 Other Worker is current (6 months or less) on appeal (no change).
Conclusion
The AAO processing times have been going up slightly over the past few months.   We notice increased delays in AAO processing times across almost all types of cases.     EB-2, for example, decreased in October by three months, only to see it increase again to 32 months.  Unfortunately, increasing filings and lack of corresponding increase in staffing has led to very long AAO appeal wait times.

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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January 2012 Visa Bulletin – EB-2 India and China Advance by Nine and a Half Months; Slow Movement in EB-3; FB1 Advances Again; Moderate Movement in FB2A

The U.S. State Department just released the January 2012 Visa Bulletin which is the fourth Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is the significant forward movement in EB-2 India and China (by nine and a half months) and the continued forward movement in FB1.

Summary of the January 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the January 2012 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 remains current for EB-2 ROW, Mexico and Philippines.   EB-2 India and EB-2 China both move forward by nine and a half (9.5) months to January 1, 2009.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only two (2) weeks to February 1, 2006, EB-3 China  moves forward by five (5) weeks to October 15, 2004, while EB-3 India  moves forward by only one (1) week to August 8, 2002.
  • The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by one and (1) month for ROW, Mexico and Philippines to February 1, 2006.  It also moves forward by three (3) weeks for India to August 1, 2002.

Summary of the January 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the January 2012 Visa Bulletin with respect to family-based petitions:

  • FB1 moves forward (again, for fourth consecutive month).  FB1 ROW, China and India all move forward by six (6) weeks to October 15, 2004.   FB1 Mexico moves forward by one (1) week to April 15, 1993 and FB1 Philippines moves forward by six (6) weeks to April 15, 1997.
  • FB2A moves forward by one (1) month to April 22, 2009 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by six (6) weeks to March 22, 2009.
  • FB2B ROW, China and India move forward by three (3) weeks to September 8, 2003.  FB2B Mexico moves forward by only one (1) week to December 1, 1992.   FB2B Philippines moves forward by two (2) weeks to September 1, 2001.

Substantial Movement in EB-2 India and China Continues;  Slow Movement  for EB-3; Continued (for Fourth Month) Forward Movement in FB1

One of the major headlines this month, in the fourth Visa Bulletin for the Fiscal Year 2012 is the continued and substantial forward movement in EB-2 India and China.    This is a confirmation of the Visa Bulletin Predictions provided by our office after meeting Mr. Charles Oppenheim on October 26, 2011.   The slow movement across EB-3 especially EB-3 India continues, unfortunately.

We see continued forward movement in the FB1 category which, for several months, had not changed.   Although the movement is only of six weeks, it is still a notable movement, especially when added to the recent forward movement in the previous Visa Bulletins.   We continue to see the FB2A category move forward, although by not as much as we saw for the last few months and after the significant retrogression during the months before.

EB-2 China and India Predictions

The January 2012 Visa Bulletin provides some general observations on the expected forward movement in the EB-2 China and EB-2 India categories.   While the significant advancement in these two categories over the past few months is expected to generate significant demand, the expectation, as of now, is that there may be more significant cutoff date forward movements in the future until USCIS sees sufficient number of filings for these categories.   According to the State Department, such movements may not be on a monthly basis and should not be expected to last throughout the next fiscal year.  If the number of filings indicates high demand for EB-2 China and India, a retrogression is possible.

The observations noted on this month’s Visa Bulletin also confirm Mr. Charles Oppenheim’s thoughts on the anticipated movement of the cutoff dates from our meeting on October 26, 2011.   While the significant advancement in the EB-2 China and EB-2 India categories over the past few months is expected to generate significant demand, the expectation, as of now, is that there may be more significant cutoff date movements in the future.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of this significant movement in the cutoff dates across many of the categories, specifically in EB-2 India and EB-2 China.   Those applicants whose priority dates are current as of the January 2012 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.

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 January 2012 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Current PERM Processing Times (as of December 6, 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 December 6, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

  • Regular processing: August 2011.  DOL is processing PERM applications with priority dates in August of 2011.  There is no change, compared to the November 1, 2011 report, suggesting that there is a slight delay in the regular PERM processing times. Accordingly, regular PERM processing times should be between three and four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: April 2011.  DOL is processing PERM audits which have a priority date of April 2011.  This is a very small advancement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately seven to nine months after the initial PERM was filed and the priority date established.  We welcome this sign of (slight) improvement in PERM audit processing times.
  • Appealed applications: February 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of February 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the November 1, 2011 report, this category has imporived the processing time by five months.   Accordingly, PERM appeals are processed approximately 20-22 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

The December 2011 PERM processing times report shows a very slight improvement in the regular and audited PERM processing times while the appealed PERM processing times improve by five months.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit and appeal processing times over the fall would continue in the winter 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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We Are Hiring – Open Immigration Paralegal Position

The Capitol Immigration Law Group PLLC is a boutique law firm specializing in employment-based immigration and representing individuals and employers. We are also growing fast.    As a result, we are looking for smart, creative people who will give 100 percent. In exchange, we’ll provide tremendous opportunities for growth, development and professional fulfillment.    We have the following open position.

Immigration Paralegal

The Capitol Immigration Law Group is seeking a talented and dedicated immigration paralegal with an interest in business immigration to assist with managing a dynamic caseload.  You will interact with clients, analyze cases and prepare filings.

Required Talents

  • Multiple years of business immigration experience
  • Experience with INSZoom
  • Incredible professionalism and attention to detail
  • Strong writing and organization skills
  • Client-oriented
  • Deep and abiding interest in the field of immigration
  • Technology and web savvyness

Location

  • Near Farragut Square, downtown Washington, DC.

Apply

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Update on H.R. 3012 – Fairness for High-Skilled Immigrants Act Clears the U.S. House of Representatives

There has been a considerable amount of discussion, excitement and, unfortunately, some incorrect rumors over the past few weeks regarding possible changes to the way employment-based immigrant visas are allocated.   Our office has been receiving many requests to comment on and speculate on what may happen with the proposed legislation.   To avoid fueling rumors, we wanted to wait until Congress takes some concrete steps towards the passage of this legislation before we provide updates.

About H.R. 3012

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

H.R. 3012 Clears the House of Representatives; More Work Remains Ahead

On November 29, 2011, the House passed H.R. 3012 by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.  A brief reminder:  the fact that H.R. 3012 has been approved by the House does not make it a law.   To become a law, the Act must be passed, in identical form, by both the House and the Senate, and then signed into law by the President.

Many would expect that the Act to pass the Senate quickly.   Unfortunately, indications from here in Washington, DC suggest otherwise.  What is the hold-up?   The answer is politics.   After the House passed the Act on November 29th, Senator Charles Grassley of Iowa, host of the upcoming presidential election caucuses, promptly placed a hold on the bill, which is expected to have broad support from his Senate colleagues.

Conclusion

While it should be encouraging to see that H.R. 3012 cleared the House, the Act is still far from being a law.  With the presidential election politics, the Act may not be taken up by the Senate for some time.   Even then, we do not know if it will be passed by the full Senate in identical form.   As a result, much work remains to be done for the Act to become a law.    We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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USCIS Online Systems Will be Unavailable Over the Weekend (12/2-12/5)

USCIS has issued an alert that a number of key online systems will be unavailable due to system maintenance from Friday, December 2nd at 7pm (EST) until Monday, December 5th at 9am (EST).   As a result, there will be no access or service to the following USCIS online systems and tools:

  • Check My Case Status
  • Sign-Up for Case Status
  • Check Processing Times
  • Change of Address Online
  • Civil Surgeon Locator
  • e-Request
  • Office Locator

USCIS has not indicated if and how this outage would affect case updates scheduled to be sent out during this period.   We hope that outgoing case update email alerts would be unaffected; but it is possible that due to the system maintenance USCIS will not issue case alerts as well.

We urge our clients and readers who need to change address (AR-11) online, locate a local office or a civil surgeon or to otherwise interact with one of these tools to do so before the beginning of the outage.

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