Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for December, 2013

Current PERM Processing Times (December 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 December 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 during October.

Current PERM Processing Times

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

  • Regular processing: April 2013.  DOL is processing PERM applications with priority dates of April 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.  There is no significant change in the regular processing times compared to the last (November 6, 2013) report.
  • Audited applications: October 2012.  DOL is processing PERM audits which have a priority date of October 2012.  This processing time has remained constant compared to the November 6, 2013 report.   Accordingly, audited PERM applications are processed approximately 14 -15 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):  December 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in December 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 December 2013 PERM processing times report shows that the PERM processing times remain unchanged compared to our report from a month ago.   However, over the past several months, 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 control and bring down the PERM processing times especially since they were as short as two months not long ago.

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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January 2014 Visa Bulletin – EB India No Movement; EB-3 ROW, China and Mexico Advance Significantly Again; No Movement in FB-2A

The U.S. State Department has just released the January 2014 Visa Bulletin which is the fourth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB India, the significant (six months) forward movement in EB-3 ROW, China and Mexico and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the January 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the January 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at November 15, 2004 and is expected to remain at this level for some time.  EB-2 China moves forward by one (1) month to December 8, 2008.
  • EB-3 ROW, China and Mexico move forward by six (6) months to April 1, 2012.  EB-3 Philippines moves forward by five (5) weeks five to February 15, 2007, while EB-3 India  remains unchanged at September 1, 2003.
  • The “other worker” moves forward by six (6) months to April 1, 2012 for ROW, China and Mexico.  It moves forward by five (5) weeks to February 15, 2007 for Philippines and remains unchanged at September 1, 2003 for India.

Summary of the January 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the January 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to December 8, 2006.   FB-1 Mexico remains unchanged (again) at September 22, 1993 and FB-1 Philippines also remains unchanged (again) 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 one (1) month to June 1, 2006.  FB-2B Mexico remains unchanged at April 1, 1994 while FB-2B Philippines moves forward by five (5) weeks to May 1, 2003.

EB India Remains Unchanged

Earlier this fall, in October, we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with this January 2014 Visa Bulletin, confirm our predictions.    The December 2013 Visa Bulletin showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months 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 by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW, China and Mexico Move Forward Significantly (Again) By Six Months

In contrast to EB India, we note that the EB-3 ROW, China and Mexico categories move forward (again) very significantly – by six months from October 1, 2011 to April 1, 2012.   This is another very significant movement and would help many EB-3 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.

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 January 2014 Visa Bulletin (EB-3, 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 January 2014 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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