Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for September, 2013

Current PERM Processing Times (September 5, 2013)

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 filing and processing statistics in addition to the processing dates as of September 5, 2013.

Current PERM Processing Times

Most notable, again, is the additional delay in the processing time for regular PERM applications — to approximately six months.  The processing times, as reported by DOL, are as follows:

  • Regular processing: February 28, 2013.  DOL is processing PERM applications with priority dates of about February 28, 2013.  Accordingly, regular PERM processing times should be around six to seven months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  While there is no additional delay this month (good news), we and many of our readers would be disappointed by the significant PERM processing times right now.
  • Audited applications: August 31, 2012.  DOL is processing PERM audits which have a priority date of August 31, 2012.  This processing time has increased (again) by one month compared to our last report as of August 5, 2013.    Accordingly, audited PERM applications are processed approximately twelve months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):September 3, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed on or about September 3, 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “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.

Conclusion

The September 2013 PERM processing times report shows no change in the regular PERM processing times and a one-month increase in the PERM audit processing times.    We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several months ago they were as short as two months.  The fact that the regular PERM processing times remain steady is a cautiously hopeful sign, but there is much room for improvement.   Also, we should caution that additional PERM delays are possible due to the (strong, as of the time of this writing) possibility that the U.S. federal government would close on October 1st.   If this happens, an additional delay in the PERM processing times, across the board, is expected.

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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DV-2015 Diversity Visa (Green Card) Lottery Opens October 1, 2013

The Department of State will open the DV-2015 Diversity Visa (a.k.a. “green card”) lottery on Tuesday, October 1, 2013.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 1, 2013, and noon, Eastern Standard Time (EST) (GMT-5), Saturday, November 2, 2013.

Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EDT on November 2, 2013.

About the DV Lottery

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 and provides for a class of immigrants known as “diversity immigrants.” Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.

The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. A computer-generated, random lottery drawing chooses selectees for DVs. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. Within each region, no single country may receive more than seven percent of the available DVs in any one year.

Countries Ineligible

For DV-2015, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Eligibility Requirements

There are two main requirements.  First, the applicant must be a national of a country which is eligible (see above for ineligible countries).  Nationality is generally defined by birth, although there are certain exceptions,  most notably if the applicant’s spouse is a national of a different country.  Second, the applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

Same-Sex Spouses

Following the Defense of Marriage Act (“DOMA”) decision earlier this year, USCIS and the Department of State now recognize and extend DV eligibility to lawfully married same-sex couples.    Diversity Visa applicants may include same-sex spouses in their initial entries or add spouses acquired after their initial registration.

Conclusion

We urge those who are considering applying for this year’s Diversity Visa lottery to read the instructions carefully and to submit their electronic entries early during the submission window.    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.

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Government Shutdown and Immigration: (How) Will It Affect Me? (September 2013 Edition)

While we are hopeful that this is not the case, it appears that the chances of the U.S. federal government shutting down on October 1st are increasing.   We would like to provide some information as to how a possible government 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 October 1 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.  It is also helpful to look at the preparations for the averted April 2011 government shutdown.

USCIS Cases

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 November 2013 Visa Bulletin, which is expected to be issued in early October by the Department of State, will be affected.   Many of our readers are eagerly expecting each Visa Bulletin.

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.   Shutdown in PERM processing would further cause PERM case processing delays, on top of the already significant PERM processing times.

Conclusion

While the full extent of the federal government shutdown (if it were to happen over the next couple of weeks) 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 urge clients who have time-sensitive cases which may be affected by a possible government shutdown to plan accordingly.

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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October 2013 Visa Bulletin – New Fiscal Year; No (or Very Slow) Movement for Most Categories; FB-2A Cutoff Date Introduced

The U.S. State Department has just released the October 2013 Visa Bulletin which is the first Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is that despite the fact that this is the first Visa Bulletin for the new fiscal year, there is not much movement for many categories and that the FB-2A category will have a cutoff date starting October 1st.

Summary of the October 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the October 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at June 15, 2008.  EB-2 China moves forward by five (5) weeks to September 15, 2008.
  • EB-3 ROW, China and Mexico remain unchanged at July 1, 2010.  EB-3 Philippines moves forward by two (2) weeks to December 15, 2006, while EB-3 India  remains unchanged at September 22, 2003.
  • The “other worker” remains unchanged for ROW and Mexico at July 1, 2010.  It moves forward by two (2) weeks to December 15, 2006 for Philippines and moves forward by three (3) months to September 22, 2004 for China.  There is no movement for India which remains at September 22, 2003.

Summary of the October 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the October 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward, although slowly.  FB-1 ROW, China and India all move forward by two (2) weeks to October 1, 2006.   FB-1 Mexico moves forward by two (2) weeks to September 22, 1993 and FB-1 Philippines moves forward by three (3) weeks to June 1, 2001.
  • FB-2A now has a cutoff date for all countries after it was current for everyone for the last two months.  All categories (FB-2A ROW, China, India, Mexico and Philippines) now have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by two (2) weeks to March 1, 2006.  FB-2B Mexico moves forward by only two (2) weeks to March 8, 1994 while FB-2B Philippines moves forward by two (2) weeks to February 8, 2003.

Slow or No Movement for Many

The October 2013 Visa Bulletin does not bring much good news.   Most categories remain unchanged, some retrogress and when there is forward movement, it is very slow.    Not a great start for the 2014 Fiscal Year.   It should be noted, however, that the cutoff dates have been advancing rapidly over the past few months for many categories and the fact that there is not much movement this month should be taken together with the recent significant movement for many.

Last two month’s significant advancement was done in order to utilize all of the available visa numbers for the fiscal year (which ends on September 30th).   The Department of State and USCIS are expecting (and our office already has seen) increased activity in this category — National Visa Center (NVC) case processing and I-485 adjustment of status activity at USCIS.    During our analysis on the September 2013 Visa Bulletin, we predicted that “with the increased activity over the next few months in EB-2 India, slowdown and even retrogression are possible. ”

FB-2A Cutoff Date Introduced – Spouses and Children of Green Card Holders

Another very significant development this month is the introduction of a cutoff date for the FB-2A category.    We expected such cutoff date to be introduced this month.    The Department of State has indicated that this category has seen good volume of filings and, in an effort to “slow down” the rate of new filings, they are introducing a September 2013 cutoff date.

It is important to note that the Department of State has indicated that a cutoff date will be imposed starting October 1, 2013 — until then, the FB-2A cutoff date is “current” and allows for concurrent filing of I-130 and I-485 petitions (for those who are in the U.S. physically).    It is important for those who are eligible to file under the FB-2A category to do so as soon as possible.

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, EB-3 and FB-2A all countries.   Those applicants whose priority dates are current as of the October 2013 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.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 October 2013 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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Fiscal Year 2012 Visitor (B1/B2) Visa Denial Rates

The Department of State (“DOS”) routinely publishes the denial rate for B-1/B-2 visitor visas for each fiscal year (October 1 to September 30).    The fiscal year (FY) 2012 data has been published and we share it with our clients and readers.

It is interesting to note the countries with the highest and lowest denial rates.    Andorra has a 100% denial rate, although we suspect that due to its small size, the actual number of applications may be really small and thus skewing the denial rate.    Other countries with high denial rates are Bhutan (52%), Djibouti (65%), Haiti (54%), Laos (60%), Mauritania (54%), Monaco (57%), Senegal (67%), Somalia (61%), Gambia (73%).

Among the countries with the lowest visitor visa denial rates are Argentina (1.5%),  Chile (2.8%), Croatia (4.4%), Cyprus (1.9%), Hong Kong (1.7%), Qatar (1.2%),  South Africa (2.9%), Uruguay (2.7%).

We recognize that the value in these statistics is not so great for visa applicants since each visa application is reviewed on its own merits and each case is unique.    However, the data is also helpful in noting the denial rates for countries who are hoping to become beneficiaries of the visa waiver program designation (one of the criteria is consistently low denial rate of visitor visas).

Please do not hesitate to contact us if we can help you.  Also, 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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DHS OIG Report on the L-1 Visa Highlights Issues and Recommends Changes to the L-1 Visa Program

The Department of Homeland Security (“DHS”) Office of Inspector General (“OIG”) has released a report on the L-1 visa program after a thorough analysis of the program, its weaknesses and opportunities for improvement.   The report makes a number of recommendations to DHS on how to strengthen the L-1 visa program by making more robust review of a number of aspects, but also, importantly, calls for a better definition and training to officers with respect to “specialized knowledge” standard, which has been one of the main issues in the L-1 program recently.

Brief Background of the L-1 Program

The L-1 visa program was institute in the 1970s and is a work-based visa which allows companies with international operations to place employees in the U.S. for a limited (5 or 7 years) term.

The L -1 visa is one of many visa types that require an approved petition.  Before a foreign traveler can apply for such a visa, a multinational company (the petitioner) must submit a petition (Form I 129) to USCIS requesting that USCIS make a determination that the intending traveler (the beneficiary) fits within the L-1 visa category.

An L-1 employee sent to work temporarily in the United States by the petitioning  employer must qualify in one of two subcategories:  L-1A (an alien performing services in a managerial or executive capacity) or L-1B  (an alien performing services as a specialized knowledge worker).   Most L-1 petitions are adjudicated by Immigration Services Officers (ISOs) at the California and Vermont Service Centers.  After USCIS approves a petition for a beneficiary who is overseas, a Department of State (DOS) consular officer interviews the individual at a U.S. consulate or embassy.

L-1 Adjudication Trends

According to USCIS, the rate of L-1 approvals have been trending down since fiscal year (FY) 2007 when the peak of 57,218 approvals was reached.   For example, in Fy2011, the approvals were only 33,301.    Out of this number, Indian nationals held the majority (26,919), followed by nationals of UK, Japan, Canada and Mexico.

The downward trend in L-1 approvals over the past several years has many causes, but from our experience, the biggest reason for the decline in the rate of L-1 approvals is the “specialized knowledge” standard which is applied to all L-1B applications.

(Not-so-Brief) Background on the “Specialized Knowledge” Issue

The L-1 visa classification was created by Congress in 1970 without providing a statutory definition of “specialized knowledge.”  The first definition was published in 1983 and in 1987, the INS revised the definition of specialized knowledge to be “knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the organization’s product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market.”  This definition required an employee to be a key person with materially different knowledge and expertise that is critical for job performance and relates exclusively to the employer’s proprietary interest.

In 1988, INS issued a policy memorandum instituting a broader interpretation of specialized knowledge, defining it as “special knowledge possessed by an employee that is different from or surpasses the ordinary or usual knowledge of an employee in the particular field.

The Immigration Act of 1990 (IMMACT) enacted the first statutory definition of specialized knowledge, clarifying that the beneficiary’s knowledge need not be proprietary to the petitioner or limited in the U.S. labor market.  IMMACT states that an “alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.”  Following  the passage of IMMACT, Congress noted that nonimmigrant visas, such as the L-1 and H-1B, had enhanced trade and accommodated useful movement of people and products.

As a result of IMMACT, INS promulgated the existing regulatory definition of specialized knowledge at 8 CFR § 214.2(l)(1)(ii)(D).  Federal immigration officials issued several policy memorandums providing guidance on what should be considered specialized knowledge.  A July 1991 INS regulation gave the interpretation of specialized knowledge that the individual must possess “special knowledge” that applies in international markets or “an advanced level of knowledge or expertise in the organization’s processes and procedures.”  In March 1994, INS issued the memorandum “Interpretation of Specialized Knowledge,” which noted that a petitioner’s assertion that an alien’s knowledge is different does not establish that the alien possesses specialized knowledge. In September 2004, USCIS issued the memorandum “Interpretation of  Specialized Knowledge for Chefs and Specialty Cooks seeking L-1B status.”  This memorandum clarified guidance in the 1994 memorandum that chefs or  specialty cooks generally are not considered to have “specialized knowledge” for L 1B purposes, even though they may have knowledge of a restaurant’s special recipe or food preparation technique.

In 2008, the Administrative Appeals Office (AAO) issued a non precedent decision on an appeal submitted by GSTechnical Services (GST).  In the GST decision, the AAO concluded that routine work experience and knowledge of a company’s products do not constitute specialized knowledge.

Specialized Knowledge Improvements Suggested

This background is helpful to give us perspective and to highlight how difficult it is to explain, in an objective way, what “specialized knowledge” is.    The OIG, in their report, support this assertion by concluding that immigration officers do not apply the specialized knowledge definition uniformly and there is much confusion as to what the test even means.

When OIG interviewed immigration offers about this standard, among the most common terms used to described the immigration officers’ concerns were “unquantifiable”, “subjective”, very difficult to adjudicate”, “open to interpretations, unfortunately.”      According to the OIG report, immigration officers refer to specialized knowledge as “you know it when you see it.”     Obviously, this is alarming for a number of L-1 program stakeholders because the lack of objective guidance which can be followed leads to great deal of uncertainty and lack of faith in the system.

The OIG report concludes that the statutory definition of specialized knowledge is vague and unclear, leading to inconsistent decision-making and confusion among petitioners as to the actual denial reasons.     This leads to the OIG report to recommend DHS to publish new clear guidance on the specialized knowledge standard.

Additional Recommendations on the L-1 Program

In addition to the specialized knowledge issue, discussed above, the OIG report makes a number of other recommendations to improve the L-1 program.   Among these recommendations are:

  • Establish a process to prevent the practice of L-1 blanket beneficiaries who are denied due to lack of specialized knowledge to petition and obtain approval/stamping under an individual L-1 petition by establishing a more uniform beneficiary tracking system;
  • Provide thorough training to CBP officers who are often the first government officers to handle an L-1 petition submitted by a Canadian L-1 applicant at the port of entry;
  • Establish better mechanism to track whether an L-1 petitioner is subject to the $2,250 filing fee when they employ 50 or more employees in the US and when 50 percent of their US workforce is on L-1 status;
  • Strengthen the tools to review “new office” L-1 petitions to be able to adjudicate properly cases where a new office is being established in the US and to determine whether the conditions of the new office have been met for the purpose of the first (and subsequent) L-1 petition extensions – for example, OIG recommends a site visit to the new office be mandatory before the new office L-1 petitions are extended;
  • Increase use of VIBE to check petitioner information and eliminate fraud and abuse and extend the use of VIBE to other agencies, including CBP;

Conclusion

The L-1 OIG report is helpful in providing a good review of what needs to be improved in the L-1 program.   We have worked with many clients over the past several years who have expressed frustration by the L-1 program and the lack of uniformity and predictability.    In its internal response to the OIG report, DHS has indicated that they are working on an memorandum to establish more clear guidance with respect to the specialized knowledge standard.    This memorandum is under internal review and we hope to see public release soon.

Please do not hesitate to contact us if we can help you.  Also, 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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