Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for January, 2012

Visa Bulletin Updates and Predictions by Charles Oppenheim (January 19, 2012)

Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate that Mr. Oppenheim has shared his first-hand knowledge of the demand in the employment-based green card categories and has afforded us to get some advance sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s January 2012 Visa Bulletin Predictions

The main points are that due to lower than anticipated demand in EB filings, EB-2 India and China cutoff dates may move forward by another 6 months in the March 2012 Visa Bulletin, and then slow down (or even retrogress) over the summer.   The slow demand in EB-1 is expected to continue this year as well.

Observations of the Demand in Employment-based Visa Numbers

Unexpectedly Low EB-2 Usage and Rate of Filings.  The employment-based (EB) visa number usage has been very slow in FY2012; as a result, the Department of State (DOS) is moving the dates forward to see how many cases are out there waiting to be filed.  Mr. Oppenheim indicated that he is relying on USCIS and their estimates of the incoming EB I-485 cases (because 85 to 90% of all EB filings are I-485s filed with USCIS).  It seems that USCIS had anticipated a higher demand — the rate of I-485 adjustment of status (AOS) filings has been only 50% of their estimates.

EB-1 Demand Low.   Mr. Oppenheim assumes low usage of EB-1 numbers again this year.  A “fall-down” of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.     Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers –  possible reasons are the impact of Kazarian on USCIS filings and demand for EB-1 EA numbers.

EB Visa Bulletin Predictions for 2012

March 2012 Visa Bulletin.   According to Mr. Oppenheim, employment-based priority dates will advance again with the March 2012 Visa Bulletin, very likely by at least a few months.    An advance of six months is possible, although an advance of one year is not likely.    Mr. Oppenheim noted that given current AOS processing times of 4-6 months, filing AOS in March is the last time to get a case possibly approved before the end of the fiscal year on September 30, 2012.

Spring, Summer and rest of FY2012. After some movement in the March (and possibly the April 2012 Visa Bulletin), Mr. Oppenheim expects to hold the priority date over the summer, and then retrogress or advance, as needed and as determined by demand over the summer.  Mr. Oppenheim does not have enough data at this time to predict demand and priority date changes in the last quarter of FY2012.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Although EB-2 is likely to continue to move forward over the next one or two months, the long term prospects of EB-3 China and India are not good.

Our office has been very active and aggressive in preparing and timely filing I-485 adjustment of status applications for clients who have become “current” over the past few months.   We will continue to be ready to handle the anticipated forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We are also happy to provide a free quote for preparing and filing your I-485 application.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  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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Updates from the Department of Labor (H-1B/PERM)

The Department of Labor has provided some updates (as of January 6, 2012) on their processing of employment-based cases and we are happy to share them with our clients and readers.   This kind of information is generally available, but if rarely combined in one place while it is still fairly recent information.

DOL Processing Statistics (First Quarter, 2012 Fiscal Year)

PERM

During the quarter, there were 13,000 cases received, 9,400 certified, 2,400 denied and 600 withdrawn.  As of January 3, 2012, there are 21,000 PERM cases pending at DOL.   Of these, 50% are pending analyst review, 33% are in audit, 10% are on appeal, 3% are in supervised recruitment and 3% are in sponsorship verification (at filing).

From the PERM cases which are being audited, the rate of approval is 44-45%.   There are currently 7,000 cases in audit stage.

Prevailing Wage Determinations

H-1B prevailing wage determinations are issued within 60 days.   DOL has indicated that their goal by late January is to have PERM prevailing wage determinations should issued within 60 days as well.

H-1B

There were 83,000 H-1B LCA filings in the first quarter (covering 150,000 workers — one LCA can include more than 1 worker).   According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is 7% and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issued.

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Admission of Canadian TN Workers

Under the North American Free Trade Agreement (NAFTA), certain Canadian and Mexican professionals are allowed to enter the U.S. under the TN nonimmigrant classification to engage in certain TN-eligible occupations.

TN Admission Requirements

It is important to note that requirements for admission of Canadian and Mexican TN workers vary.   A Canadian citizen TN worker may apply for TN classification at the border, while Mexican TN workers must first obtain a TN visa at a U.S. Consulate.     Because it is not necessary for citizens of Canada to obtain a TN visa stamp,  Canadian TN workers can seek admission as TN worker at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic or at a U.S. pre-clearance/pre-flight station.

Proper Period of Admission

A citizen of Canada may be admitted to the U.S. in TN status for up to three years, assuming that the individual’s passport will remain valid throughout the admission period.     A key document a Canadian TN worker should be ready to present is a TN support letter, prepared and issued by the intended US employer describing how the intended position and the employee qualify for TN status.

Not all Canadian TN workers are given a 3-year TN stay, however.    If the intended employment is of shorter duration, as described in a TN employer support letter, the TN worker is likely to be given TN status for the requested work period.

Conclusion

The requirement of a passport with sufficient validity and a proper TN employer support letter makes it important for Canadian TN workers to prepare a proper application for admission into the U.S. on TN status.   Our office routinely handles emergency calls from would-be-TN Canadian workers who are held at the border due to irregularity with their employer support letter or related documents.   We are happy to assist with the preparation of proper TN admission paperwork.    Please feel free to contact us for assistance or with questions.

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Biometrics Codes and Reusing/Transferring Biometrics

Many of our clients and readers are familiar with the requirement to submit to biometrics (digital fingerprinting and/or photograph, please see below) in connection with certain USCIS applications.    The biometrics are often taken at USCIS Application Support Centers (ASC) after a notice, showing a specific ASC address and appointment date/time, is issued and mailed to the applicant.

Among the most common USCIS application types which require biometrics are I-485, Application to Adjust Status, I-131, Application for Travel Document (Reentry Permit) (please see our specialized Expedited Reentry Permit site), and I-90, Application to Replace Permanent Resident Card.   Our office handles a fair number of these applications and we hope to provide some additional background on the biometrics process.

Biometrics Codes

Normally, an ASC Biometrics Notice would contain (in the top right area), a field named “Code.”    The “Code” field is intended to indicate the type of biometrics processing to be performed.  The possible values are:

  • Code 1 – fingerprinting only (10 prints);
  • Code 2 – biometrics (photo, signature and index finger);
  • Code 3 – fingerprints (10 prints) and biometrics (photo, signature and index finger).

USCIS has indicated that the applicable code for each biometrics appointment is determined based on the type of an application and certain relevant case factors.

Reusing/Transferring Biometrics Across Applications

A question which arises often with respect to some applicants is whether USCIS can reuse biometrics for different types of applications.   Some examples are a reentry permit applicant, who needs to renew his or her green card, or for I-485 adjustment applicant who need to apply for a reentry permit soon after I-485 approval.

The government has confirmed that they are indeed willing and able to transfer biometrics across applications; however, such flexibility is available only to military service members and their families who have unique situations regarding deployment, moving, and living overseas which affect their ability to provide fingerprints and fulfill the background check requirements.    This authority is provided by the Kendell Frederick Citizenship Assistance Act, enacted on June 26, 2008, requires USCIS to use fingerprints taken for previous immigration purposes or fingerprints provided during military enlistment to complete the required naturalization fingerprint check.

Can Biometrics Be Waived?

Unfortunately, USCIS is very clear that the collection of biometrics cannot be waived with very limited waivers available for certain medical conditions (generally, medical conditions which affect the applicant’s ability to do the biometrics).

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Current PERM Processing Times (as of January 4, 2012)

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 January 4, 2012.  Most notable is the slight decrease (or improvement) in the processing time for regular PERM applications — to approximately three months.  The processing times, as reported by DOL, are as follows:

  • Regular processing: October 2011.  DOL is processing PERM applications with priority dates in October of 2011.  There is notable improvement (of one month) in the processing times, compared to the December 6, 2011 report.  Accordingly, regular PERM processing times should be around three 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.  There is no change in the date for this type, suggesting that there is a delay of at least one month in comparison to prior months.   Accordingly, audited PERM applications are processed approximately eight to ten months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration): April 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of April 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the December 6, 2011 report, this category has improved the processing time by two months.   Accordingly, PERM requests for reconsideration are processed approximately 18-20 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 January 2012 PERM processing times report shows a very slight improvement in the regular and appealed PERM processing times, while there is a slight delay in the audited PERM processing times.   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 and spring 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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February 2012 Visa Bulletin – EB-2 India and China Advance by Twelve Months; Slow Movement in EB-3; FB-1 Advances Again; Moderate Movement in FB2A

The U.S. State Department just released the February 2012 Visa Bulletin which is the fifth 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 twelve months) and the continued forward movement in FB-1.

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

Below is a summary of the February 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 twelve (12) months to January 1, 2010.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only three (3) weeks to February 22, 2006, EB-3 China  moves forward by six (6) weeks to December 1, 2004, while EB-3 India  moves forward by only one (1) week to August 15, 2002.
  • The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by three (3) weeks for ROW, Mexico and Philippines to February 22, 2006.  It also moves forward by two (2) weeks for India to August 15, 2002.

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

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

  • FB-1 moves forward (again, for fifth consecutive month).  FB-1 ROW, China and India all move forward by nine (9) weeks to December 22, 2004.   FB-1 Mexico moves forward by one (1) week to April 22, 1993 and FB-1 Philippines moves forward by five (5) weeks to May 22, 1997.
  • FB-2A moves forward by six (6) weeks to June 8, 2009 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by six (6) weeks to May 8, 2009.
  • FB-2B ROW, China and India move forward by five (5) weeks to October 15, 2003.  FB-2B Mexico remains unchanged at December 1, 1992.   FB-2B Philippines moves forward by two (2) months to November 1, 2001.

Substantial Movement in EB-2 India and China Continues;  Slow Movement  for EB-3; Continued (for Fifth Month) Forward Movement in FB-1

One of the major headlines this month, in the fifth 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 FB-1 category which, for several months, had not changed.   This month’s forward movement is the fifth consecutive month with forward movement in the FB-1 category.   We continue to see the FB-2A 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 February 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 February 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 February 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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US Consulate in Chennai, India No Longer Accepts Immigrant Visa Applications

The Department of State has confirmed that as of January 1, 2012, the U.S. Consulate in Chennai, India will no longer accept and process immigrant visa (IV, or green card) applications.    The U.S. Embassy in New Delhi and U.S. Consulate in Mumbai will become the only acceptance centers in India for immigrant visas.

The change does not affect the substantive rules for qualifying for an immigrant visa or the underlying immigrant petitions, such as I-140 or I-130.     Applicants currently in the process of petitioning for an immigrant visa at Chennai may contact ChennaiIVU@state.gov for clarification on their status.

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N-400 U.S. Citizenship Application Statistics

USCIS has released an interesting report from its field offices on the processing times and statistics of N-400, Application for Naturalization, filings for the fiscal years 2010 through 2012 (or, October 2011).

Number of N-400 Applications

The report breaks down, for each field office processing N-400 applications, the number of receipts, approvals, denials and pending cases for both military and non-military N-400 filings.   The statistics are provided for fiscal years 2010, 2011 and YTD 2012.

Average N-400 Processing Times

The report also provides average processing (or cycle) times for N-400 applications, calculated on a service-wide basis.   As of October 2011, the average service-wide processing time for N-400 application was 4.2 months for military N-400 case and 4.9 months for non-military N-400 case.

Please note that these average processing times are calculated on a service-wide basis, taking into account all field offices (including ones with very little load).   A more reliable (and accurate) way to obtain specific field office processing times is to check the field office processing times for N-400 cases on USCIS website.

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USCIS Ombudsman Recommends Changes to EB-1 EA Adjudication Standards

A few days ago, on December 29, 2011, the USCIS Ombudsman has issued a report and set of recommendations urging USCIS to take proactive steps to ensure clear, consistent and predictable standards are applied to immigrant visa applications under the first employment-based preference category (EB-1) for aliens with extraordinary ability (EA).

Background on the Current EB-1 EA Adjudication Standards

The Ombudsman report and its recommendations were triggered by the lack of clear standards and guidance after the December 22, 2010, USCIS policy memorandum which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to certain employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals.   The policy guidance provides a two-part test to determine eligibility: (1) an evaluation of whether the petitioner provided the requisite evidence; and (2) a final merits determination.   However, as a result of the December 22, 2010 memo, our office (and other in the community) has seen inconsistent adjudications, errors in applying the new standards and, simply, confusion.

Among the main issues with the current EB-1 adjudication approach are (1) the current standards for I-140 adjudication allow for too much subjectivity — in other words, adjudicators can make decisions which are difficult, if not impossible, to challenge, if applied incorrectly; (2) the December 22, 2010 memorandum’s two-part review is not required by the Kazarian decision, and even if it was, the standard has not resulted in clearer standard of review; (3) immigration officers who examine I-140 petitions in the EB-1 category lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability”; and (4) USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination under the two-part test mandated by the December 22, 2010 memo.

The Ombudsman’s Recommendations to USCIS

The Ombudsman report makes several recommendations to USCIS seeking to address the concerns raised after the December 22, 2010 memo.

1.  Conduct Formal Rulemaking to Clarify the Regulatory Standard.

Essentially, the Ombudsman’s office urges USCIS to engage in a process whereby USCIS would propose a rule, incorporating the EB-1 regulatory standard, and then subject that rule to public review and comment, as required by the Administrative Procedure Act.

The use of the APA rulemaking process would assist both adjudicators and others in the immigration legal community to clarify the adjudicatory standard for EB-1s.  The ability to submit written comments to the proposed rule is also supplemented by a requirement that USCIS issues a written statement explaining how it has responded to the public comments.  The APA rulemaking process would provide substantive standards for adjudicators to use in adjudications, and for individuals and employers to use in preparing petitions.  If public comment were negative, USCIS could incorporate reasonable suggestions into a revised rule to accommodate legitimate stakeholder concerns.

2.   In the Interim, Provide Public Guidance on the Application of  a Final Merits Determination

While USCIS goes through the formal rulemaking process, outlined above, the Ombudsman’s office recommends that USCIS provide interim clear objective standard for evaluating the totality of the supporting evidence submitted as part of any EB-1 application.     According to the recommendation, effective guidance would explain that an adjudication may include a limited subjective analysis, but cannot involve discretion, and how to apply subjectivity without leading to arbitrary or inconsistent adjudications. Clear guidance would enhance the quality and consistency of adjudications, and lead to fairer, more predictable outcomes.

3.  In the Interim, Train and Provide Additional Clear and Specific Guidance to Adjudicators on Proper Preponderance of Evidence Standard Application in EB-1 Cases

Additionally, while USCIS goes through the rulemaking process recommended in #1 above, the Ombudsman’s office recommends that USCIS provide adjudicators with additional training and materials clarifying what constitutes proof of: extraordinary ability; outstanding professor/researcher status; and exceptional ability, by a preponderance of the evidence.

Conclusion

We applaud the USCIS Ombudsman’s recommendations on the EB-1 standards.   Our office has witnessed first-hand lack of cohesion by USCIS when dealing with EB-1 filings and we have, on at least some occasions, counseled very cautious approach when applying for EB-1 cases, mainly due to the lack of predictability of the review standards.    The EB-1 extraordinary ability category is intended to attract the brightest talents from a number of fields; instead, the current lack of clear standards has the effect of deterring some very good applications.

While the report contains recommendations, we hope that USCIS would consider it and take steps to implementing it.  We will continue to monitor this topic and provide relevant updates.   In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.

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