Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for November, 2013

Current PERM Processing Times (November 6, 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 November 6, 2013.    We should note that this processing times report is the first to be released after the 16-day government shutdown in October 2013 so the processing times are affected by DOL being closed for close to three weeks.

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: March 2013.  DOL is processing PERM applications with priority dates of March 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  The additional one- month increase in the processing times (compared to the last September 2013 report) would be disappointing news to many PERM applicants; however, we are hopeful that DOL would be able to catch up and work on decreasing this metric.
  • Audited applications: September 2012.  DOL is processing PERM audits which have a priority date of September 2012.  This processing time has increased by a month or so compared to our last report as of September 5, 2013.    Accordingly, audited PERM applications are processed approximately 14 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):  November 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in November 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 November 2013 PERM processing times report shows slight (1-2 months) increase 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.   We also believe that this month’s report was affected by the government shutdown.

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.

No comments

December 2013 Visa Bulletin – EB-2 India Major Retrogression; EB-3 ROW Moves Forward by a Year; No Movement for FB-2A

The U.S. State Department has just released the December 2013 Visa Bulletin which is the third Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the major (over 3.5 years) retrogression in EB-2 India, the significant (1 year) forward movement for EB-3 ROW and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

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

Below is a summary of the December 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 retrogresses, as we anticipated, by three years and seven months to November 15, 2004.  EB-2 China moves forward by one (1) month to November 8, 2008.
  • EB-3 ROW, China and Mexico move forward by one (1) year (not a typo!) to October 1, 2011.  EB-3 Philippines moves forward by three (3) weeks to January 8, 2007, while EB-3 India  retrogresses by three (3) weeks back to September 1, 2003.
  • The “other worker” moves forward by one (1) year to October 1, 2011 for ROW, China and Mexico.  It moves forward by three (3) weeks to January 7, 2007 for Philippines and retrogresses by three (3) weeks back to September 1, 2003 for India.

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

Below is a summary of the December 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 three (3) weeks to November 15, 2006.   FB-1 Mexico remains unchanged at September 22, 1993 and FB-1 Philippines also remains unchanged at July 1, 2001.
  • FB-2A remains unchanged (again) for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by five (5) weeks to May 1, 2006.  FB-2B Mexico remains unchanged at April 1, 1994 while FB-2B Philippines moves forward by three (3) weeks to March 22, 2003.

Not Good News for EB India:  Major Retrogression Hits EB-2 India; EB-3 India Also Moves Back

A couple of weeks ago, our office shared in detail our expectations that there would be a major retrogression in EB-2 India.      The December 2013 Visa Bulletin shows that our expectations were absolutely correct even though many of our EB India clients and readers would be disappointed by this news.     We expect that EB-2 India would remain severely retrogressed for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to stop the rate of new filings until USCIS and DOS are able to approve the pending cases and “clear the demand.”

EB-3 ROW Moves Forward Significantly By One Year

In contrast to EB India, we note that EB-3 ROW moves forward very significantly – by one year from October 2010 to October 1, 2011.   This is a very significant movement and would help many EB-3 ROW applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Visa Bulletin Predictions – Employment-Based

The December 2013 Visa Bulletin also provides a general estimate on the movement of the cutoff dates over the next months.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, depending on demand, a cutoff date towards the end of the fiscal year may be introduced.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  No forward movement.

EB-3 Rest of World (ROW).    After this month’s significant forward movement, it is possible to see certain additional forward movement to stimulate “demand” for the next several months.   Afterwards, the movement may stop or even retrogress.   There should be any forward movement beyond February.

EB-3 China.  Expected to track the worldwide (ROW) date.

EB-3 India.  No forward movement expected.

EB-3 Philippines.  Expected to keep moving forward by three to six weeks per month.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the December 2013 Visa Bulletin (EB-3 ROW, specifically) 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 December 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.

No comments

CILG In the News: Bad Credit and Immigration

A recent article for Yahoo Finance entitled, Can a Bad Debt Get You Deported? discusses the implications of bad credit or unpaid bills to the immigration process.    Founder and principal attorney Dimo Michailov was consulted for article and quoted throughout the article.

“Normally, the United States does not look at credit” when considering visa applications, says Washington D.C.-based immigration attorney Dimo Michailov.

If a bad debt winds up in the court system, it is usually a civil proceeding that does not have to be disclosed. If criminal activity were involved, it would be a different matter, he says. As a general rule, though, being unable to pay your debts is not a criminal matter.

Full article at Yahoo Finance.

Our office remains actively engaged with the media and we are often consulted and cited (with our without attribution) by various news organizations.   If our office can help with any (time-sensitive or otherwise) media inquiries, please contact us at media@cilawgroup.com.

No comments

USCIS Redesigns and Proposes Revisions on Form I-129 – Public Comment Period Open

USCIS has circulated a proposed draft of a redesigned and revised Form I-129 and has opened a public comment period on the proposed changes.   The new form features a new design layout where most of the questions are the same but laid out slightly differently.   There are some changes to the wording of some questions, but there are also some notable substantive changes on the form which may impact a number of I-129 filers.   Specifically, one of the substantive changes on the form may impact notably beneficiaries who have certain ownership interest in the sponsoring employer.

Overview of Proposed Substantive Form I-129 Changes

DUNS Number.   The I-129 form now asks for a company’s DUNS number (more info)– we believe this field was added to allow USCIS to do better VIBE system checks on a petitioner’s existence.

Ownership Interest.   The form now asks whether the beneficiary has any ownership interest in the petitioning employer and if the answer is “Yes,” the form asks for details of the beneficiary’s ownership interest.    This is a new field and we believe it was added to allow USCIS to test the “employer-employee relationship” for many employers where the beneficiary has some ownership interest.   This can be a significant issue for startups and entrepreneurs who have secured H-1B visa (for example) to allow them to work for their own company.     Our office has dealt with this issue on numerous occasions and we see continued headwinds for entrepreneurs to obtain H-1B petition approval when the entrepreneur is a significant owner of the employer.       Our office also has an upcoming webinar on entrepreneurs and H-1B.

Attorney Attestation.   The form expands the attorney attestation section with respect to the accuracy and the quality of the information submitted on the form.

Conclusion

The public comment period ends on November 25, 2013 so we encourage anyone who wants to comment on the proposed Form I-129 revision to do so.     We would continue monitoring this subject and provide updates to our clients and readers.   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 related immigration-related news and announcements.

No comments

USCIS Processing Times Reports – How to Interpret and Are They Reliable?

Anyone who has ever filed a petition of some sort with USCIS has wondered, “How long would I have to wait to get a response from USCIS on my application?”     Chances are that such an applicant has used the online status check and has also checked the “normal” processing times for the type of a case they have had filed.   Many of our clients and readers are well aware of these two resources and we encourage following the information posted on the USCIS website.    However, we often receive questions by clients on how to interpret the processing times posted on the USCIS website and whether these reports are actually reliable.    We seek to provide a little bit of information on how these government processing times reports are compiled, how to interpret them and whether they are reliable at all.

Recent Issues with Inaccurate Processing Times Reports

Over the past few months, we have seen an increasing number of cases for which the processing times reports do not reflect accurate case status.  In other words, the processing times reports have been inaccurate, in some cases, substantially so.   For example, when USCIS processing times indicated that H-1B cases are processed within 3 months, our office had a number of pending cases which had been pending well above this time period.

USCIS has addressed some of these concerns and have taken steps to correct the way the processing times are gathered and reported to ensure higher quality data.     In the past, internal investigations by USCIS have revealed that some of the processing times are simply being reported incorrectly.   For example, the Texas Service Center had inadvertently been processing cases out of their receipt order, thereby deviating from their standard first-in/first-out policy.    We were assured that this deviation has been corrected.

How Are Processing Times Determined?

The USCIS calculated processing times are intended to be a reflection of the number of months of application/petition receipts that an office’s inventory of pending cases represents.    For example, a 4-month processing time reported for a service center indicates that the inventory of pending cases (waiting to be processed) was equal to the number of cases that the center had received over the past 4 months.    This means that the processing times are somewhat backward looking in the sense that they do not necessarily reflect how long a new case would remain pending.

USCIS also shows the online processing times based on workload processing goals.   If USCIS is processing a specific type of a petition in less time than the processing goal, the processing time would be shown in months.    If USCIS is taking longer than the processing time goal to handle a case, USCIS will post the specific filing date of the oldest pending case the service center has to process as of the date of the processing time chart.

USCIS’s methodology in calculating the processing times is as follows:   USCIS only calculates the time a case is considered to be actively pending with USCIS and is under adjudication.  It does not take into account the time USCIS is waiting or an action by the applicant or petition.   As an example, the time is takes for USCIS to issue and wait for a response to a request for evidence (RFE) (usually 84 or 87 days), is not reflected in the processing times.

USCIS Working to Provide More Recent Processing Times Information

Another substantial problem with the processing times report is that the data is simply very old.    Often, by the time a processing times report is published online, it is already 30-, 45- or even 60-days old.    USCIS has indicated that it works with its internal IT and Performance and Quality Departments to try to speed up the information gathering and reporting process.   According to USCIS, the current process of gathering the processing times information is manual and based on self-reporting.   USCIS is working on a new system which should allow automated, accurate and faster reporting.    The system is currently being tested and is scheduled for implementation in early fiscal year 2013.

Reliability vs. “Outside of Processing Times”

With all of this background information on how the USCIS processing times reports are compiled, it should not come as a surprise when many start to question the reliability and the usefulness of the processing times reports.    Yes, they may not reflect the most recent information and yes, they may not be fully accurate, but they do serve an important purpose in the adjudication process and our office takes full advantage of the processing times reports to advance our clients’ cases.

Normally, when a case is “within” the normal processing times, there is often very little or nothing that can be done to try to move the case forward.   However, when a case is considered to be outside of the reported processing times, the government allows a service request to be opened and to look into the case status and seek to have it “expedited” or, at least, reviewed.   This is when the processing time reports become very useful — if a case is pending beyond the normal processing times, as current reported by USCIS, then it may be an option (and a good idea) to seek to open a service request with USCIS on the status of the case.     In the past, on many occasions, we have been able to secure quick case adjudication by opening service request on a case which is pending beyond the normal processing times; as a result, while the actual report may not be very reliable and accurate, it is an important tool case management tool.

Conclusion

The ability to obtain recent, accurate and timely information on a case’s processing status and expected turnaround is vital for our office and for our clients and readers.   We remain hopeful that USCIS would continue working towards improving their online case status system and its processing times reports.     We will continue monitoring this subject and provide updates to our clients and readers.   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 related immigration-related news and announcements.

No comments