Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for July, 2012

EB-5 Processing Statistics for I-526 and I-829 Petitions

USCIS has released an updated set of processing statistics for petitions filed under the fifth employment-based preference category (EB-5) for foreign investors.     It is interesting to note that the number of I-526 applications (for initial EB-5 green card) have more than doubled compared to 2010 (4,156 compared to 1,955) while the approval rate has remained fairly steady at around 80%.   The rate of I-829 filings (application to remove condition) have dropped off at 546 (compared to 2,345 and 768 for the previous two years).   The approval rate for I-829 has remained steady at around 90%.

Detailed EB-2 Processing Statistics

In addition to the general summary of EB-5 processing data, the report provides a breakdown of the receipts, approvals and denials all the way back to 2005, broken down by quarter.     It is interesting to note the trend of increasing I-526 filings starting approximately in 2008-2009, when the recession started.   For example, the current rate of I-526 filings has quadrupled in comparison to 2008 or 2009, while the approval rate has remained steady.    At the same time, when seen in conjunction with the I-829 (removal of condition) processing data, we see a high rate of I-829 filings in 2011 to early 2012, with a dropoff over the past two quarters of 2012.

Regional Center Applications

USCIS has released some information on the applications for a “regional center” certification.  In 2012, there were approximately 50-60 regional center applications in each of the first three quarters.    So far in 2012, there were only 30 regional center applications approved (with the remaining applications under review currently).

The EB-5 processing data is helpful as it provides not only a snapshot of the current processing trends, but also allows for a comparison of the rate of filings, approvals and denials over the past 6-7 years.   If our office can be of any assistance regarding EB-5 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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AAO Processing Times (July 1, 2012)

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 July 1, 2012.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal takes 17 months (decrease, or improvement, of one month compared to our last report as of May 1, 2012);
  • L-1 appeal takes 22 months (no change);
  • I-140 EB-1 Extraordinary Ability takes 10 months (improvement of four month), Multinational Manager or Executive takes 18 months (improvement of three months) while EB-1 Outstanding Professor or Researcher category is current (defined as 6 months or less);
  • I-140 EB-2 (Advanced Degree) takes 12 months (a significant improvement by 9 months) while EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker takes 35 months (increase by 1 month) while EB-3 Other Worker is current (6 months or less) on appeal (no change).
The AAO processing times for at least some of the categories (EB-2, for example) have been improving notably over the past few months.   We are very pleased to see that the AAO is now processing I-140 EB-2 cases in one year (in comparison to close to three years recently).   We notice that AAO processing times remain steady across many of the other types of cases.     We hope that the notable trend of improvement in the processing times in EB-2 appeals would continue and spread to other types of cases as well, specifically EB-3, where the current wait is around 3 years.

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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Updates from the Department of Labor (H-1B/PERM)

The Department of Labor has provided some updates (as of July 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 is rarely combined in one place while it is still fairly recent information.

DOL Processing Statistics (Third Quarter, 2012 Fiscal Year)


According to the report, during the quarter, there were 19,300 cases received (increase from 17,100 in Q2), 7,400 certified (decrease from 9,500 in Q2), 2,600 denied (decrease from 2,900 in Q2) and 800 withdrawn.  As of July 8, 2012, there are 28,400 (increase from 21,000 in Q2) PERM cases pending at DOL.   Of these, 52% are pending analyst review, 37% are in audit, 4% are on appeal, 5% are in supervised recruitment and 2% are in sponsorship verification (at filing).

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the third quarter, there were approximately 34,000 prevailing wage determination requests filed — of those, 29,412 were for PERM cases (increase of 1% over the Q2), 3,142 were for H-1B cases (decrease of 10%) and 1,045 were for H-2B cases (decrease of 20%).

In terms of activity, less prevailing wage determinations were issued in Q3 – 31,088, a decrease of 14% compared to Q2.   The number of pending applications, however, remains steady, at 14,564, which seems to indicate that we have reached a steady balance in the processing times of prevailing wage determinations — 6-8 weeks.


The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers, in addition to the top positions and geographic areas.    There were 134,839 H-1B LCA filings in the third quarter, an increase over the past quarters which is mainly attributed to the H-1B cap program which started on April 1st. During the quarter, there were 134,030 LCAs certified for 317,864 positions (one LCA can include more than 1 position).

According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is very small (7,061, out of 144,898) and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

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USCIS Announces the Creation of a Separate EB-5 Program Office

The U.S. Citizenship and Immigration Service (USCIS) has announced the creation of a separate office which would be tasked with overseeing the EB-5 immigrant investor program.

Yesterday, July 18, 2012, USCIS Director Mayorkas announced that his agency has and will continue to increase the number of staff dedicated to the EB-5 immigrant investor program.    This is in a direct result of earlier criticism of too-long processing times and aims to streamline and provide a faster and (hopefully) more predictable EB-5 application review process.  Director Mayorkas identified the tens of thousands of new jobs for US workers and the billions of dollars injected by EB-5 immigrant investors into the US to date.  He also summarized efforts to date to increase agency resources dedicated to the EB-5 program.

USCIS is recruiting a new Chief of Immigrant Investor Program to manage the newly created office and that two full-time attorneys are being added to the program’s team.    Also, a Review Board is expected to be instituted by the end of July to review every pending application for regional center designation in which a denial has been recommended (essentially, a secondary review process for denials).  Regional center applicants will receive the opportunity to discuss their cases in-person before any final adverse decision.    The goal is to continue to deny regional center applications which do not deserve certification, but to allow legitimate regional center applications to have the certainty that adequate process exists to explain and support an application which may otherwise be denied.

EB-5 Program Office Creation Positive Step; Impact Yet Unknown

It is still too early to anticipate what the impact of the newly created EB-5 Program office would be.   The government’s goals are clear — make it easier for the U.S. to attract qualified foreign investors by streamlining the process and making the process faster and more predictable.      The EB-5 immigrant visa category remains one of the few categories with available visa numbers for this fiscal year.   According to recent data provided by the State Department,  approximately 6,200 immigrants will take advantage of the EB-5 program during this fiscal year, well under the allotted maximum of 10,000.    Demand is highest by nationals of China (3,710), South Korea (335) and Taiwan (106) distant second and third.

We will continue monitoring the development of this EB-5 Program Office and report on related news and developments as we continue to pursue EB-5 applications on behalf of our clients.     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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H.R. 3012 Update: Sen. Grassley Removes Hold on H.R. 3012; Bill Continues in Senate

We have been monitoring developments around the H.R. 3012 legislation aimed at removing the per-country annual limits for the immigrant visa categories.    We have written extensively in the past and many of our clients and readers are very interested in any developments with H.R. 3012 because of its wide (and significant) impact on employment-based immigrant visa applicants.

Senator Grassley Removes Hold on H.R. 3012  – July 11, 2012

Many of our readers would remember that Senator Grassley placed a hold on H.R. 3012 because of his concerns with the H-1B program and possible abuses.   We wrote on June 28, 2012 of Senator Grassley’s proposal that in exchange of his lifting his hold on the bill, the bill would be amended to include significant H-1B audit and enforcement mechanisms.

Subsequently, Senators Grassley and Schummer have reached an agreement and on July 11, 2012, Senator Grassley removed his hold from H.R. 3012.   Here is his statement, as added into the Congressional Record on July 11th:

Mr. GRASSLEY. Mr. President, today I lift my hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act. This bill would eliminate the per-country numerical limitations for employment based immigrants and change the per-country numerical limitations for family-based immigrants. When I placed a hold on the bill, I was concerned that the bill did nothing to better protect Americans at home who seek high-skilled jobs during this time of record unemployment. Today , I lift my hold because I have reached an agreement with the senior Senator from New York, the chairman of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security.

I have spent a lot of time and effort into rooting out fraud and abuse in our visa programs, specifically the H-1B visa program. I have always said this program can and should serve as a benefit to our country, our economy and our U.S. employers. However, it is clear that it is not working as intended, and the program is having a detrimental effect on American workers.

For many years, Senator Durbin and I have worked on legislation to close the loopholes in the H-1B visa program. Our legislation would ensure that American workers are afforded the first chance to obtain the available high paying and high skilled jobs in the United States. It would make sure visa holders know their rights. It would strengthen the wage requirements, ridding the incentives for companies to hire cheap, foreign labor.

While I could not get everything that was included in the Durbin-Grassley visa reform bill, there is agreement to include in H.R. 3012 provisions that give greater authority to program overseers to investigate visa fraud and abuse. Specifically, there will be language authorizing the Department of Labor to better review labor condition applications and investigate fraud and misrepresentation by employers. There is also agreement to include a provision allowing the Federal Government to do annual compliance audits of employers who bring in foreign workers through the H-1B visa program.

I appreciate the willingness of other members to work with me to include measures that will help us combat visa fraud, and ultimately protect more American workers. I look forward to working with others as H.R. 3012 progresses in the Senate.

See the PDF version provided by the Government Printing Office.

Plenty of Work Still Ahead for H.R. 3012

Sen. Grassley’s hold removal is a significant step towards H.R. 3012 becoming a law.   However, many steps (and time) remain before the bill would actually become a law.   First, the bill must continue to make its way through the U.S. Senate where it must pass.   Afterwards, the bill must be taken by the U.S. House of Representatives and must be reconciled with the version of H.R. 3012 which was earlier passed by the House in a different form.

A quick reminder on how Congress passes laws:  a bill must pass both the Senate and the House in identical form and must be then signed by the President to become a law.

Only after the House votes on the bill, in identical form to the text which was approved by the Senate, would then President Obama have a chance to sign it into law.


In an election year, as the politics heat up, we simply do not know what other roadblocks the bill may face in the Senate or later, after it gets to the House.    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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Brookings Report on the H-1B Program: Demand, Availability and Training Fees

The Brookings Institute has completed and released an interesting report (PDF document, accompanied by interactive charts) on the H-1B program.    The report aims to provide a deeper analysis of the H-1B program and to understand the issues and the competitive advantages (or lack thereof) of one of the H-1B work visa which is the most common U.S. temporary foreign worker program.

The Report’s Findings

The report concludes that although the demand for H-1B visas has fluctuated widely over the last decade, in almost all years, the annual H-1B cap has been fully used.   The report points that there seems to be discrepancy between the actual demand of foreign skilled workers and the availability of H-1B visa numbers and suggests that an independent (non-political entity) should be tasked with evaluating demand of H-1B visas and adjusting the H-1B cap on the basis of actual local employer needs.

The report goes on to analyze H-1B demand by geographical area, over period of time and over types of workers (STEM v. non-STEM) to create a better understanding of how H-1B work visa demand fluctuates over time/geographical area and to also be able to create H-1B profiles for a number of geographical areas.

Also, the government has distributed over $1 billion from H-1B fees to fund programs seeking to address skills shortages.  However, the report notes that those fees have not been proportionately distributed to metropolitan areas requesting the highest number of H-1B workers.   According to the report, metropolitan areas with high demand of H-1B workers are only receiving $3.09 on average per working age person compared to $15.26 for metropolitan areas that have a lower demand level for 2010-2011.

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August 2012 Visa Bulletin – EB-2 India and China Remain Unavailable; EB-2 ROW Cutoff Date Unchanged at January 1, 2009; FB-1 Philippines Retrogresses by 32 Months

The U.S. State Department has just released the August 2012 Visa Bulletin which is the eleventh Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is the continued unavailability in the EB-2 India and China categories (which is expected to continue for at least one more months), the unchanged cutoff date for EB-2 ROW and the significant (32 months) retrogression for FB-1 Philippines.

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

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

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines continues (until October 1, 2012) to have a cutoff date of January 1, 2009.    EB-2 India and EB-2 China remain unavailable.
  • EB-3 ROW and EB-3 Mexico move forward by six (6) weeks to September 8, 2006.  EB-3 Philippines moves forward by one (1) week to June 15, 2006, EB-3 China  moves forward by six (6) weeks to November 8, 2005, while EB-3 India  moves forward by only one (1) week to October 1, 2002.
  • The “other worker” category remains unchanged at June 15, 2003 for China and at June 8, 2006 for Philippines.  It moves forward by six (6) weeks for ROW and Mexico to September 8, 2006.  It also moves forward by one (1) week for India to October 1, 2002.

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

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

  • FB-1 moves forward (again, for tenth consecutive month).  FB-1 ROW, China and India all move forward by three (3) weeks to August 1, 2005.   FB-1 remains unchanged at June 8, 1993 and FB-1 Philippines retrogresses by thirty-two (32) months back to March 1, 1994.
  • FB-2A moves forward by one (1) month to March 15, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by one (1) month to March 1, 2010.
  • FB-2B ROW, China and India move forward by six (6) weeks to June 22, 2004.  FB-2B Mexico moves forward by almost eight (8) months to August 22, 1992 and FB-2B Philippines moves forward by one (1) week to January 1, 2002.

Continued Cutoff Date for EB-2 ROW Caused by High Demand In Filings

The introduction of a cutoff date for the EB-2 Rest of the World (ROW) category last month in the July Visa Bulletin came as a surprise to many, despite earlier indications by the Department of State has and our warnings of the possibility of cutoff dates in the EB-2 ROW category.   The cutoff date of January 1, 2009 for EB-2 ROW remains in this month’s Visa Bulletin.    This aggressive retrogression and the lack of movement this month suggest that the demand of EB-2 visas has been greater and we should not anticipate any relief in this category for the remainder of the fiscal year (until October 1st).   In fact, the Department of State has warned that they may even need to make the EB-2 ROW category unavailable for the remaining Visa Bulletin for this fiscal year.

EB-2 India and China Remains Unavailable;  Will Remain for the Remainder of the Fiscal Year

The EB-2 India and China categories remain unavailable for second consecutive Visa Bulletin.   No change is expected for the rest of the fiscal year.

FB-1 Philippines Retrogression Caused by High Demand

The retrogression in the family-based first preference category (FB-1) for Philippines was significant (32 months) and was caused by high demand and in an effort by the Department of State to hold the number of visas issued in this category within the annual numerical limits.   As we approach the end of the fiscal year (ending September 30), this retrogression is an indication that the USCIS and NVC have received sufficient number of FB-1 applications to meet this year’s annual quota.   We expect that the FB-1 cutoff dates for Philippines (and others) to advance with the October 2012 Visa Bulletin.

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 August 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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