Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for June, 2014

Current PERM Processing Times (June 5, 2014)

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 June 5, 2014.

Current PERM Processing Times

Most notable is the decrease in the processing time for PERM applications – from seven months down to six months for regular PERM cases.     The processing time of PERM applications in audit increases by a month compared to our prior report from a montha go.   The processing times, as reported by DOL, are as follows:

  • Regular processing: December 2013.  DOL is processing PERM applications with priority dates of December 2013.  Accordingly, regular PERM processing times should be around six months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    There is a (welcome) improvement in the processing time for PERM cases of about one month, compared to the May 2014 report.    We are hopeful that the trend would continue.
  • Audited applications: January 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of January 2013.  There is no change in the reported date, which means that this processing time has increased slightly, by one month, compared to the May 2014 report.   Accordingly, audited PERM applications are processed approximately 17-18 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): June 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in June 2014.  There is no change in this category, compared to our last report.    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 June 2014 PERM processing times report shows that the PERM processing times start to decrease and improve slightly compared to a month ago.    Over the past several months, we saw continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that this one-month improvement in the PERM processing times is the beginning of a welcome trend.

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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July 2014 Visa Bulletin – EB-2 India Moves Forward by Four Years; FB-2A Remains Unchanged

The U.S. State Department has just released the July 2014 Visa Bulletin which is the tenth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant (four years) forward movement in EB-2 India and the lack of any movement in FB-2A.

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

Below is a summary of the July 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 advances significantly by almost four (4) years to September 1, 2008.  EB-2 China moves forward by five (5) weeks to July 1, 2009.
  • EB-3 ROW, China and Mexico remain unchanged.  EB-3 ROW and Mexico are at April 1, 2011 while EB-3 China remains unchanged at October 1, 2006.   EB-3 Philippines advances by one (1) year to January 1, 2009, while EB-3 India  moves forward by only two (2) weeks to November 1, 2003.
  • The “other worker” categories for ROW, China and Mexico also remain unchanged.  ROW and Mexico are at April 1, 2011 while China remains unchanged at January 1, 2003.    Philippines advances by one (1) year to January 1, 2009, while India  moves forward by only two (2) weeks to November 1, 2003.

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

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

  • FB-1 ROW, China and India all move forward by one (1) week to April 1, 2007.   FB-1 Mexico moves forward by six (6) weeks to February 1, 1994 and FB-1 Philippines moves forward by six (6) months to January 1, 2003.
  • FB-2A remains unchanged for all (after a significant retrogression last month) – it remains at May 1, 2012 for ROW, China, India and Philippines.  It remains at March 15, 2011 for Mexico.

EB-2 India Significant Forward Movement

Finally, this month’s Visa Bulletin brings some welcome (and somewhat expected) news for EB-2 India applicants.     Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office has expected some movement to occur towards the end of the fiscal year.     The four-year forward movement in EB-2 India is done to allow the government to process a number of pending I-485 applications in order to utilize all of the available visa numbers for the fiscal year (to end on September 30).    We expect approvals on many I-485 cases (which have cleared their RFEs, for some, due to medical exam expiration).

Since many EB-2 India applicants have also ported their EB-3 priority date into EB-2, there will be a significant number of EB-2 India nationals who would have their newly-ported EB-2 priority date become current and who would be eligible to file I-485 adjustment of status applications (together with eligible family members).

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 July 2014 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 (very time-sensitive for some) opportunity to file I-485 applications.    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 July 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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USCIS Revised Policy Regarding I-693 Medical Exam Validity – Restricts Validity to One Year

USCIS has announced a change in their policy regarding the validity period of a Form I-693, Report of Medical Examination and Vaccination Record, when filed in support of a Form I-485 Adjustment of Status Application.   Effective June 1, 2014, the I-693 medical report will be valid for one year from the date of submission to USCIS.   This is in addition to the requirement that the I-485 applicant must submit the I-693  medical exam within one year of the actual medical exam date.

Background and Reasons for the Change of Policy

Before 2002, USCIS considered a Form I-693 medical exam valid as long as it was filed within one year of the civil surgeon’s signature.   Since 2002, USCIS has kept this practice and has continuously extended the validity of the civil surgeon’s endorsement on the I-693 medical exam.   As a result, timely-filed Form I-693 medical exam documents were automatically considered extended and “current” by USCIS.

After consultations with the Centers for Disease Control (“CDC”), USCIS has decided to change the policy regarding the validity of I-693 medical exams and to effectively discontinue the automatic validity extension policy.   While we do not know the specific reasons for the policy change and any concerns raised by CDC, a possible reason may be the fact that under the prior automatic extension policy, there may have been applicants who have been waiting for I-485 adjudication for 3, 5, 7 or even more years and for those applicants the I-693 medical exam report on file simply does not provide an accurate picture of their health (and any health risks they may pose).

Policy Change Related to Increased Number of I-485 Requests for Evidence

This policy change is directly related to the increased number of recent requests for evidence (RFEs) on pending I-485 applications, especially for cases where the priority date is expected to be current over the next months.     As we reported in our recent article, our office sees an increased number of RFEs which specifically request renewed I-693 medical exam report to be submitted back to USCIS.     It seems that USCIS is using the need of a new I-693 medical exam report to also request additional items in their RFEs, such as employment verification documents.

Conclusion

It is helpful to see that USCIS has formulated a policy and a formal explanation to the medical exam validity period.    This policy change helps explain the wave of recent (and upcoming) RFEs.   We recommend that I-485 applicants who have had their I-485 pending for more than year to be prepared to respond to an RFE for medical exams, among other related items.    This includes updating their mailing address with USCIS and ensuring that their attorney of record information on the I-485 is current.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Visa Stamp in Canada Alert – TCN Processing Limited Over the Summer

The Department of State (DOS) has just confirmed that due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts (U.S. Consulates) in Canada are extremely limited in their ability to accept TCN cases during the peak demand period of June, July, and August.

TCN refers to “third-country nationals” or non-Canadians who seek to apply for a U.S. visa stamp at a U.S. Consulate in Canada.   Normally, U.S. Consulates prefer for a national of a particular country to appear for a visa stamp at the U.S. Consulate in their own country or at the Consulate serving their country.   When a foreign national appears for a visa stamp at a U.S. Consulate in a third country, where such practice is accepted, the applicant is referred to as a “third-country national.”

According to the Department of State, U.S. Consulates in Canada encourage such TCN applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Canadian posts offer increased appointment availability for TCNs during non-peak processing times, such as October and November, and January through May.   Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.

While it is important to stress that visa interviews and appointments by third-country nationals already scheduled at a U.S. Consulate in Canada will be honored, our office would like to stress proper planning for any international travels for those foreign nationals who are in the U.S. but who would need to obtain a U.S. visa stamp before their return to the U.S.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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