Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for August, 2014

September 2014 Visa Bulletin – EB-2 India Again Moves Forward by Four Months; EB-3 Philippines and FB-2A Also Advance Significantly

The U.S. State Department has just released the September 2014 Visa Bulletin which is the twelfth and last Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued notable forward movement in EB-2 India and EB-3 Philippines and the lack of movement in any of the other EB categories.   Also, very notable is the significant (and long overdue) forward movement in the FB-2A category.

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

Below is a summary of the September 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 by over three (3) months to May 1, 2009.  EB-2 remains unchanged at October 8, 2009.
  • EB-3 ROW and Mexico remain unchanged (again) at April 1, 2011.  EB-3 China remains unchanged at November 1, 2008 while EB-3 India  remains unchanged at November 8, 2003.   EB-3 Philippines advances by ten (10) months to April 1, 2011.
  • The “other worker” categories for ROW and Mexico remain unchanged at April 1, 2011.  EB-3 China remains unchanged at July 22, 2005 while EB-3 India  remains unchanged at November 8, 2003.  EB-3 Philippines advances by ten (10) months to April 1, 2011.

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

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

  • FB-1 ROW, China and India all move forward by one (1) week to May 1, 2007.   FB-1 Mexico moves forward by almost two (2) months to June 1, 1994 and FB-1 Philippines moves forward by two (2) months to August 1, 2004.
  • FB-2A finally moves forward (after a period of retrogression and no movement) – it moves forward significantly by eight (8) months to January 1, 2013 for ROW, China, India and Philippines.  It also moves forward by over one (1) year to April 22, 2012 for Mexico.

EB-2 India Another Significant Forward Movement

After the significant forward movement over the last couple of months in EB-2 India, this month’s Visa Bulletin brings another welcome (and somewhat expected) piece of news for EB-2 India applicants.     Even though this month’s movement is of about four months, to May 1, 2009, it still allows many EB-2 India applicants to file their I-485 applications.     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 had expected some movement to occur towards the end of the fiscal year.     Our office has been increasingly busy with new I-485 filings (for those who are becoming current this or next month) or for handling I-485 requests for evidence (for those who had pending I-485 applications but had expired medicals).   The four-year forward movement in EB-2 India, followed by two four-month forward movements, is done by the U.S. Department of State 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 see a number of approvals and expect more 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).

In a note found in the Visa Bulletin, the Department of State warns that heavy demand (number of filings) in EB-2 India may cause this (and other) category to reach its annual limit sometime in September – when this happens, the government (USCIS and DOS) will stop approving immigrant visas and a correction in the Visa Bulletin midway through the month may be possible.    The September Visa Bulletin cautions that a retrogression in EB-2 India is likely as early as in the November Visa Bulletin.

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 September 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 September 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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F-1 OPT Cap-Gap Allows Employment Only Until September 30th

This year’s busy H-1B cap season included many H-1B employee candidates who hold F-1 status and who are employed in the U.S. pursuant to F-1 optional practical training (OPT) status.    Out of these F-1 visa holders, many rely on the OPT cap-gap rule to continue working in the U.S. after the post-April 1st expiration date of the OPT and for as long as the H-1B cap petition is not denied or rejected by USCIS.   However, the OPT cap-gap rule allows OPT extension only until September 30th, leaving possibly some H-1B candidates in a period of unauthorized employment.

F-1 OPT Cap-Gap Employment Authorization Valid Only Until September 30th

Due to this year’s heavy H-1B visa demand, it is likely that USCIS may not be able to adjudicate all H-1B petitions by September 30th.   As a result, there are likely to be many cases where the F-1 OPT holder is taking advantage of the OPT cap-gap rule to work after the post-April 1st OPT expiration date based on the pending H-1B petition.   Many F-1 students in this situation, however, are not aware that the OPT cap-gap rule applies only until September 30th and if the H-1B cap petition remains pending beyond September 30th, the F-1 holder would no longer be eligible to work in the U.S. under the OPT cap-gap rule (stay in the U.S. is likely to be authorized for as long as the H-1B cap petition seeking change of status to H-1B remains pending).

Am I Affected By This Rule and Am I In Danger of Losing Employment Authorization?

The first step for an F-1 OPT candidate for an H-1B cap visa is to understand whether he or she is affected by this situation.   If (1) the candidate’s F-1 OPT expiration date was after April 1st but before September 30th, if (2) H-1B cap petition is still pending decision with USCIS, and (3) if the H-1B cap petition was filed requesting change of status, then it is likely that the F-1 candidate may be in danger of losing OPT cap-gap work authorization if the H-1B petition remains pending beyond September 30th.

Early Premium Processing Upgrade May be Needed to Avoid Interruption of Employment Authorization

In those cases where the H-1B cap petition seeking change of status remains pending beyond September 30th, the F-1 OPT cap-gap rule does not permit employment and the F-1 holder will have to stop working as of October 1st and wait until the H-1B petition is approved (or risk violating his or her F-1 status by engaging in unauthorized employment).

To avoid the possibility of a period of lack of employment authorization and disruption at the workplace, we recommend that candidates and their employers consider a premium processing upgrade of their H-1B petition as soon as possible in order to force USCIS to make a decision within 15 days.   Please note that USCIS may request additional evidence or RFE (especially if they have not already done so) on the H-1B petition in which case the employer would have to respond to the RFE and then the government would have another 15 days to provide a response.

It is September 30th and My H-1B Petition is Still Pending – What Should I Do?

Most importantly — stop working — because the OPT cap-gap employment authorization ends on September 30th if the H-1B petition is still pending as of that date.    If a premium processing upgrade has not been done, it may be a good idea to do so in order to minimize the period without employment authorization and so that the candidate can get back to work as early as possible.    Please also consider contacting us for a consultation.

Conclusion

For those affected by the OPT gap-cap rule with a pending H-1B petition we recommend premium processing upgrade as soon as possible to minimize periods without employment authorization and disruption of employment.    A timely and properly-filed premium processing upgrade even in late August stands a good chance to allow uninterrupted OPT gap-cap, followed by H-1B, employment authorization.

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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Current PERM Processing Times (August 4, 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 August 4, 2014.

Current PERM Processing Times

This month does not bring much change in the PERM processing times – regular PERM cases still take around four to five months.     The processing time of PERM applications in audit remains unchanged compared to our prior report from a month ago.

The processing times, as reported by DOL, are as follows:

  • Regular processing: March 2014.  DOL is processing PERM applications with priority dates of March 2014.  There is no change compared to the July 2014 report.    Accordingly, regular PERM processing times should be around four to five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    We hope that this continues the trend of (slight) improvement in the processing time for PERM cases.
  • Audited applications: March 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of March 2013.  There is no change compared to last month’s 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): August 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in August 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 August 2014 PERM processing times report shows that the PERM processing times start to decrease and improve just slightly compared to a month ago.    Over the past several months, we have observed continuing decrease (improvement) in the regular PERM processing times and on behalf of our clients, we are hopeful that this improvement trend would continue.

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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Case Processing Statistics from the Department of Labor (FY2014 Q3)

The Department of Labor has provided some updates for the third quarter of the Fiscal Year 2014 (April 1, 2014 to June 30, 2014) on their processing of PERM, H-1B LCA and prevailing wage determination cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (Third Quarter, 2014 Fiscal Year)

PERM

According to the report, during the quarter, there were 20,173 new cases received (significant increase of 15% from the same period in the prior year), 21,076 certified (notable increase over the previous quarters), 1,504 denied (increase, but in proportion of the rate of new filings) and 1,097 withdrawn (slight increase over previous periods).

There are 55,427 applications pending as of June 30, 2014 with approximately 61% in analyst review stage (slight decrease), 28% under audit review (slight increase) and 10% on appeal (slight increase).  It is interesting to note that there were no cases reported in supervised recruitment — we believe that this may be incorrect reporting, because there are supervised recruitment cases right now at DOL.

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 35,000 prevailing wage determination requests filed — of those, 31,719 were for PERM cases (increase of 9% compared to prior year’s period), 2,016 were for H-1B cases (decrease of 9%) and 1,298 were for H-2B cases (decrease of 10%).     In terms of activity, more prevailing wage determinations were issued in Q3 compared to prior quarters – 36,247 and the pending load has decreased to 14,308 applications (down by 8%).

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers and the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is lower compared to other quarters during the year, and especially Q2.  Even then, there were 101,629 H-1B LCA filings in the third  quarter.   During the quarter, there were 99,876 LCAs certified for 155,524 positions (one LCA can include more than 1 position).

According to DOL, 100% of the LCAs are processed timely within seven days of receipt (last year’s period metric was 99%).     The rate of LCA denial is fairly low (3,156 out of 110,562 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The third quarter of the FY2014 shows increase in the number of DOL filings in a number of categories.   It is interesting to see that the rate of PERM prevailing wage requests has been going up, which is likely to translate into a higher number of PERM filings and, as a result, increase in PERM case processing times.    We are hopeful that DOL would continue to work on decreasing its load and processing times, especially for the PERM cases.    We will continue monitoring DOL processing metrics and report any notable developments and trends.      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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