We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate that Mr. Oppenheim has shared his first-hand knowledge of the demand in the employment-based green card categories and has afforded us to get some advance sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s January 2012 Visa Bulletin Predictions

The main points are that due to lower than anticipated demand in EB filings, EB-2 India and China cutoff dates may move forward by another 6 months in the March 2012 Visa Bulletin, and then slow down (or even retrogress) over the summer.   The slow demand in EB-1 is expected to continue this year as well.

Observations of the Demand in Employment-based Visa Numbers

Unexpectedly Low EB-2 Usage and Rate of Filings.  The employment-based (EB) visa number usage has been very slow in FY2012; as a result, the Department of State (DOS) is moving the dates forward to see how many cases are out there waiting to be filed.  Mr. Oppenheim indicated that he is relying on USCIS and their estimates of the incoming EB I-485 cases (because 85 to 90% of all EB filings are I-485s filed with USCIS).  It seems that USCIS had anticipated a higher demand — the rate of I-485 adjustment of status (AOS) filings has been only 50% of their estimates.

EB-1 Demand Low.   Mr. Oppenheim assumes low usage of EB-1 numbers again this year.  A “fall-down” of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.     Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers –  possible reasons are the impact of Kazarian on USCIS filings and demand for EB-1 EA numbers.

EB Visa Bulletin Predictions for 2012

March 2012 Visa Bulletin.   According to Mr. Oppenheim, employment-based priority dates will advance again with the March 2012 Visa Bulletin, very likely by at least a few months.    An advance of six months is possible, although an advance of one year is not likely.    Mr. Oppenheim noted that given current AOS processing times of 4-6 months, filing AOS in March is the last time to get a case possibly approved before the end of the fiscal year on September 30, 2012.

Spring, Summer and rest of FY2012. After some movement in the March (and possibly the April 2012 Visa Bulletin), Mr. Oppenheim expects to hold the priority date over the summer, and then retrogress or advance, as needed and as determined by demand over the summer.  Mr. Oppenheim does not have enough data at this time to predict demand and priority date changes in the last quarter of FY2012.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Although EB-2 is likely to continue to move forward over the next one or two months, the long term prospects of EB-3 China and India are not good.

Our office has been very active and aggressive in preparing and timely filing I-485 adjustment of status applications for clients who have become “current” over the past few months.   We will continue to be ready to handle the anticipated forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We are also happy to provide a free quote for preparing and filing your I-485 application.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  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.

DOL Processing Statistics (First Quarter, 2012 Fiscal Year)

PERM

During the quarter, there were 13,000 cases received, 9,400 certified, 2,400 denied and 600 withdrawn.  As of January 3, 2012, there are 21,000 PERM cases pending at DOL.   Of these, 50% are pending analyst review, 33% are in audit, 10% are on appeal, 3% are in supervised recruitment and 3% are in sponsorship verification (at filing).

From the PERM cases which are being audited, the rate of approval is 44-45%.   There are currently 7,000 cases in audit stage.

Prevailing Wage Determinations

H-1B prevailing wage determinations are issued within 60 days.   DOL has indicated that their goal by late January is to have PERM prevailing wage determinations should issued within 60 days as well.

H-1B

There were 83,000 H-1B LCA filings in the first quarter (covering 150,000 workers — one LCA can include more than 1 worker).   According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is 7% and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issued.

TN Admission Requirements

It is important to note that requirements for admission of Canadian and Mexican TN workers vary.   A Canadian citizen TN worker may apply for TN classification at the border, while Mexican TN workers must first obtain a TN visa at a U.S. Consulate.     Because it is not necessary for citizens of Canada to obtain a TN visa stamp,  Canadian TN workers can seek admission as TN worker at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic or at a U.S. pre-clearance/pre-flight station.

Proper Period of Admission

A citizen of Canada may be admitted to the U.S. in TN status for up to three years, assuming that the individual’s passport will remain valid throughout the admission period.     A key document a Canadian TN worker should be ready to present is a TN support letter, prepared and issued by the intended US employer describing how the intended position and the employee qualify for TN status.

Not all Canadian TN workers are given a 3-year TN stay, however.    If the intended employment is of shorter duration, as described in a TN employer support letter, the TN worker is likely to be given TN status for the requested work period.

Conclusion

The requirement of a passport with sufficient validity and a proper TN employer support letter makes it important for Canadian TN workers to prepare a proper application for admission into the U.S. on TN status.   Our office routinely handles emergency calls from would-be-TN Canadian workers who are held at the border due to irregularity with their employer support letter or related documents.   We are happy to assist with the preparation of proper TN admission paperwork.    Please feel free to contact us for assistance or with questions.

Among the most common USCIS application types which require biometrics are I-485, Application to Adjust Status, I-131, Application for Travel Document (Reentry Permit) (please see our specialized Expedited Reentry Permit site), and I-90, Application to Replace Permanent Resident Card.   Our office handles a fair number of these applications and we hope to provide some additional background on the biometrics process.

Biometrics Codes

Normally, an ASC Biometrics Notice would contain (in the top right area), a field named “Code.”    The “Code” field is intended to indicate the type of biometrics processing to be performed.  The possible values are:

• Code 1 – fingerprinting only (10 prints);
• Code 2 – biometrics (photo, signature and index finger);
• Code 3 – fingerprints (10 prints) and biometrics (photo, signature and index finger).

USCIS has indicated that the applicable code for each biometrics appointment is determined based on the type of an application and certain relevant case factors.

Reusing/Transferring Biometrics Across Applications

A question which arises often with respect to some applicants is whether USCIS can reuse biometrics for different types of applications.   Some examples are a reentry permit applicant, who needs to renew his or her green card, or for I-485 adjustment applicant who need to apply for a reentry permit soon after I-485 approval.

The government has confirmed that they are indeed willing and able to transfer biometrics across applications; however, such flexibility is available only to military service members and their families who have unique situations regarding deployment, moving, and living overseas which affect their ability to provide fingerprints and fulfill the background check requirements.    This authority is provided by the Kendell Frederick Citizenship Assistance Act, enacted on June 26, 2008, requires USCIS to use fingerprints taken for previous immigration purposes or fingerprints provided during military enlistment to complete the required naturalization fingerprint check.

Can Biometrics Be Waived?

Unfortunately, USCIS is very clear that the collection of biometrics cannot be waived with very limited waivers available for certain medical conditions (generally, medical conditions which affect the applicant’s ability to do the biometrics).

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of January 4, 2012.  Most notable is the slight decrease (or improvement) in the processing time for regular PERM applications — to approximately three months.  The processing times, as reported by DOL, are as follows:

• Regular processing: October 2011.  DOL is processing PERM applications with priority dates in October of 2011.  There is notable improvement (of one month) in the processing times, compared to the December 6, 2011 report.  Accordingly, regular PERM processing times should be around three months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: April 2011.  DOL is processing PERM audits which have a priority date of April 2011.  There is no change in the date for this type, suggesting that there is a delay of at least one month in comparison to prior months.   Accordingly, audited PERM applications are processed approximately eight to ten months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration): April 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of April 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the December 6, 2011 report, this category has improved the processing time by two months.   Accordingly, PERM requests for reconsideration are processed approximately 18-20 months after the initial PERM was filed and its priority date established.
• “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 (see above for processing times).

Conclusion

The January 2012 PERM processing times report shows a very slight improvement in the regular and appealed PERM processing times, while there is a slight delay in the audited PERM processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit and appeal processing times over the fall would continue in the winter and spring as well.

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.

The change does not affect the substantive rules for qualifying for an immigrant visa or the underlying immigrant petitions, such as I-140 or I-130.     Applicants currently in the process of petitioning for an immigrant visa at Chennai may contact ChennaiIVU@state.gov for clarification on their status.

Number of N-400 Applications

The report breaks down, for each field office processing N-400 applications, the number of receipts, approvals, denials and pending cases for both military and non-military N-400 filings.   The statistics are provided for fiscal years 2010, 2011 and YTD 2012.

Average N-400 Processing Times

The report also provides average processing (or cycle) times for N-400 applications, calculated on a service-wide basis.   As of October 2011, the average service-wide processing time for N-400 application was 4.2 months for military N-400 case and 4.9 months for non-military N-400 case.

Please note that these average processing times are calculated on a service-wide basis, taking into account all field offices (including ones with very little load).   A more reliable (and accurate) way to obtain specific field office processing times is to check the field office processing times for N-400 cases on USCIS website.

Background on the Current EB-1 EA Adjudication Standards

The Ombudsman report and its recommendations were triggered by the lack of clear standards and guidance after the December 22, 2010, USCIS policy memorandum which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to certain employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals.   The policy guidance provides a two-part test to determine eligibility: (1) an evaluation of whether the petitioner provided the requisite evidence; and (2) a final merits determination.   However, as a result of the December 22, 2010 memo, our office (and other in the community) has seen inconsistent adjudications, errors in applying the new standards and, simply, confusion.

Among the main issues with the current EB-1 adjudication approach are (1) the current standards for I-140 adjudication allow for too much subjectivity — in other words, adjudicators can make decisions which are difficult, if not impossible, to challenge, if applied incorrectly; (2) the December 22, 2010 memorandum’s two-part review is not required by the Kazarian decision, and even if it was, the standard has not resulted in clearer standard of review; (3) immigration officers who examine I-140 petitions in the EB-1 category lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability”; and (4) USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination under the two-part test mandated by the December 22, 2010 memo.

The Ombudsman’s Recommendations to USCIS

The Ombudsman report makes several recommendations to USCIS seeking to address the concerns raised after the December 22, 2010 memo.

1.  Conduct Formal Rulemaking to Clarify the Regulatory Standard.

Essentially, the Ombudsman’s office urges USCIS to engage in a process whereby USCIS would propose a rule, incorporating the EB-1 regulatory standard, and then subject that rule to public review and comment, as required by the Administrative Procedure Act.

The use of the APA rulemaking process would assist both adjudicators and others in the immigration legal community to clarify the adjudicatory standard for EB-1s.  The ability to submit written comments to the proposed rule is also supplemented by a requirement that USCIS issues a written statement explaining how it has responded to the public comments.  The APA rulemaking process would provide substantive standards for adjudicators to use in adjudications, and for individuals and employers to use in preparing petitions.  If public comment were negative, USCIS could incorporate reasonable suggestions into a revised rule to accommodate legitimate stakeholder concerns.

2.   In the Interim, Provide Public Guidance on the Application of  a Final Merits Determination

While USCIS goes through the formal rulemaking process, outlined above, the Ombudsman’s office recommends that USCIS provide interim clear objective standard for evaluating the totality of the supporting evidence submitted as part of any EB-1 application.     According to the recommendation, effective guidance would explain that an adjudication may include a limited subjective analysis, but cannot involve discretion, and how to apply subjectivity without leading to arbitrary or inconsistent adjudications. Clear guidance would enhance the quality and consistency of adjudications, and lead to fairer, more predictable outcomes.

3.  In the Interim, Train and Provide Additional Clear and Specific Guidance to Adjudicators on Proper Preponderance of Evidence Standard Application in EB-1 Cases

Additionally, while USCIS goes through the rulemaking process recommended in #1 above, the Ombudsman’s office recommends that USCIS provide adjudicators with additional training and materials clarifying what constitutes proof of: extraordinary ability; outstanding professor/researcher status; and exceptional ability, by a preponderance of the evidence.

Conclusion

We applaud the USCIS Ombudsman’s recommendations on the EB-1 standards.   Our office has witnessed first-hand lack of cohesion by USCIS when dealing with EB-1 filings and we have, on at least some occasions, counseled very cautious approach when applying for EB-1 cases, mainly due to the lack of predictability of the review standards.    The EB-1 extraordinary ability category is intended to attract the brightest talents from a number of fields; instead, the current lack of clear standards has the effect of deterring some very good applications.

While the report contains recommendations, we hope that USCIS would consider it and take steps to implementing it.  We will continue to monitor this topic and provide relevant updates.   In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional processing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of December 1, 2011.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal takes 22 months (no change compared to our last report as of October 1, 2011);
• L-1 appeal takes 22 months (improvement, or decrease, of one month);
• I-140 EB1 Extraordinary Ability takes 16 months (no change), Multinational Manager or Executive takes 21 months (increase of one month) while EB1 Outstanding Professor or Researcher category takes 10 months (increase of one month);
• I-140 EB2 (Advanced Degree) takes 32 months (increase by three months) while EB2 (NIW) takes 12 months (decrease of one month); and
• I-140 EB3 Skilled Worker takes 35 months (increase of one month) while EB3 Other Worker is current (6 months or less) on appeal (no change).

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of December 6, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

• Regular processing: August 2011.  DOL is processing PERM applications with priority dates in August of 2011.  There is no change, compared to the November 1, 2011 report, suggesting that there is a slight delay in the regular PERM processing times. Accordingly, regular PERM processing times should be between three and four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: April 2011.  DOL is processing PERM audits which have a priority date of April 2011.  This is a very small advancement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately seven to nine months after the initial PERM was filed and the priority date established.  We welcome this sign of (slight) improvement in PERM audit processing times.
• Appealed applications: February 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of February 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the November 1, 2011 report, this category has imporived the processing time by five months.   Accordingly, PERM appeals are processed approximately 20-22 months after the initial PERM was filed and its priority date established.
• “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 (see above for processing times).

Conclusion

The December 2011 PERM processing times report shows a very slight improvement in the regular and audited PERM processing times while the appealed PERM processing times improve by five months.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit and appeal processing times over the fall would continue in the winter as well.

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.

About H.R. 3012

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

H.R. 3012 Clears the House of Representatives; More Work Remains Ahead

On November 29, 2011, the House passed H.R. 3012 by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.  A brief reminder:  the fact that H.R. 3012 has been approved by the House does not make it a law.   To become a law, the Act must be passed, in identical form, by both the House and the Senate, and then signed into law by the President.

Many would expect that the Act to pass the Senate quickly.   Unfortunately, indications from here in Washington, DC suggest otherwise.  What is the hold-up?   The answer is politics.   After the House passed the Act on November 29th, Senator Charles Grassley of Iowa, host of the upcoming presidential election caucuses, promptly placed a hold on the bill, which is expected to have broad support from his Senate colleagues.

Conclusion

While it should be encouraging to see that H.R. 3012 cleared the House, the Act is still far from being a law.  With the presidential election politics, the Act may not be taken up by the Senate for some time.   Even then, we do not know if it will be passed by the full Senate in identical form.   As a result, much work remains to be done for the Act to become a law.    We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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USCIS has not indicated if and how this outage would affect case updates scheduled to be sent out during this period.   We hope that outgoing case update email alerts would be unaffected; but it is possible that due to the system maintenance USCIS will not issue case alerts as well.

We urge our clients and readers who need to change address (AR-11) online, locate a local office or a civil surgeon or to otherwise interact with one of these tools to do so before the beginning of the outage.

Comparison of FY2011 and FY2012 H-1B Cap Seasons

This H-1B cap season lasted approximately two months shorter than last year’s.  Last year’s (fiscal year 2011, FY2011) H-1B cap season lasted until January 26, 2011, when the H-1B quota was reached.  This year, FY2012, the H-1B cap season was two months shorter.  This can be explained in a number of ways, most notably due to the gradual improvement in the U.S. economy and increase in the rate of hiring for the next 6-12 months.  As we saw the rate of H-1B filings over the past few weeks of this H-1B cap season to increase, we expect that as the economy continues to improves over the next couple of quarters, the H-1B demand should pick up and we expect that the new H-1B cap season, to open on April 2, 2012, to be busier than the last one.

Alternatives to H-1B Cap

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2012, when the new fiscal year’s H-1B quota would begin (as a reminder, April 2, 2012 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferree

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

H-1B Program Changes by Congress Unlikely

While we do not expect Congress to raise the H-1B cap for FY2013, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap.  While none of these proposals have gained momentum at this time, we will be providing updates as soon as there is a likelihood that there will be development on this front.

Wait and File on April 2, 2012 for the FY2013 Cap

For some of our clients, waiting until April 2, 2012 to file a new cap-subject H-1B petition may be the best option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, the FY2013 H-1B cap is expected to be the same as it was for the FY2012 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).  However, as the economy starts to improve and employers increase hiring, we do not expect that next year’s H-1B numbers will remain available for as much as 8-9 months, as they did this year.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 2, 2012, to ensure that their petition has the greatest chance to be included in the quota.  Please contact us to start preparing for your FY2013 H-1B cap filing.

F-1 Stamping Remains Good (and Fast) Alternative to Change of Status from Within the U.S.

We welcome the Department of State’s commitment to issue F-1 student visas on an expedited basis within 15 days.   Our office often counsels foreign nationals who are in the U.S. and seek to commence study by switching their current valid status (H-1, H-4, L-1, among others) to F-1 student status by filing an application to change status, I-539, from within the U.S.     We routinely file a number of such applications; however, this approach is not always perfect for everybody.

Many (prospective) students must begin their F-1 status as soon as possible in order to take advantage of a number of F-1 benefits (such as work authorization) or to comply with requirements imposed by the universities (for example, grants or other funding requiring F-1 status).   Considering the I-539 application may take 3 to 4 months (sometimes even more) to be reviewed and approved, many prospective students face difficult choices — remain in the U.S. and wait for 3-4 months for an application to change status to F-1 to be approved or leave the U.S. and take the chance that an F-1 visa stamp would be promptly adjudicated by the U.S. consulate abroad.

By making sure that F-1 student visa applications at U.S. consulates are reviewed within 15 days, the Department of State makes the F-1 stamping alternative a very feasible option for those who seek to obtain F-1 status in the U.S. on a short term or for those first-time foreign students who may be aiming to commence school on a short notice.

Conclusion

As we counsel a number of current and prospective F-1 foreign students, we welcome the Department of State’s announcement of expedited processing of F-1 student visa stamps at consulates abroad.    This announcement not only confirms the U.S. commitment to allowing foreign students to come and study into the U.S. but also provides a (relatively) fast option for those foreign nationals in the U.S. who need F-1 status but are not able to wait for the 3-4 month required to change status from within the U.S.

Please do not hesitate to contact us if we can provide any consultation or if we can be of any assistance.

Partially as a result of our outreach on the upcoming H-1B cap limit, we have been getting many questions on what happens when the H-1B cap is reached?  How does USCIS handle applications which are received on or after the date the H-1B cap is reached?

H-1B Applications Filed on the Day the H-1B Cap is Reached Are Subject to Random Lottery

H-1B filings which are received on the day the H-1B cap is reached are counted and, assuming the number of filed applications exceeds the remaining number of H-1B visas, USCIS conducts a random lottery to determine which of these H-1B applications would be counted and included under the cap.   Those H-1B applications which are filed on the last day but are not selected on the lottery for that last H-1B day are returned to the petitioners.

For example, if on the last day of the H-1B quota there are 700 available H-1B visas, but USCIS, on that day, receives 1,000 H-1B filings, there will be a random lottery among these 1,000 H-1B filings to determine 700 cases which will be accepted for processing under the cap.   The 300 H-1B filings not selected in this last-day lottery will be returned.

H-1B Filings Not Picked by the Last-Day Lottery or Filed Afterwards Are Rejected and Returned

H-1B cases filed on the last day of the H-1B cap but not picked by the last-day lottery (if there is one), or, H-1B cases filed after the last day are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Conclusion

Considering the increasing volume of H-1B filings and given our recent reports on the status of the FY2012 H-1B cap, we believe that the H-1B cap will be reached by the end of November 2011.    We will continue providing updates on the H-1B cap and, once it is reached, on possible alternatives.   If you need our help and services, please contact us at your earliest convenience

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As November 14, 2011, USCIS has received approximately 56,300 H-1B petitions counting toward the 65,000 cap (an increase of 7,100 over the previous two weeks).  Similarly, as of November 14, there were 20,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit.

H-1B Quota Trends – Rate of Regular Cap H-1B Filings Increases Significantly; H-1B Masters Cap Reached

The numbers, as just reported for the past week, confirm that the rate of filing of new cap-subject H-1B filings is increasing significantly.  Now that the H-1B U.S. Master’s cap has been reached, all H-1B filings (regardless of level of education) will be counted under the regular H-1B cap.   As a result, we expect the average weekly rate of filings to be around 3,500, compared to 1,000-1,500 previously.     Additionally, we often see a rush of filings towards the end of the cap season as employers realize that the cap is about to close, so we anticipate the rate of filings to increase over the next few weeks.

H-1B Cap Likely to Close by Late November or Early December 2011 — Last Call for Cap-Subject H-1B Filings

Given an estimated rate of H-1B filings of 3,500 per week for the next few weeks, and given that there are approximately 9,000 H-1B visa numbers left towards meeting the annual cap, it is likely that the H-1B cap for FY2012 will be reached towards the end of the year — likely by the end of November or early December  2011.

Considering the fact that an H-1B petition takes at a minimum 7 to 10 business days to file, we urge all employers and future H-1B workers to start the H-1B filing process as soon as possible.    If you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of November 1, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

• Regular processing: August 2011.  DOL is processing PERM applications with priority dates in August of 2011.  This suggests that there is a slight improvement in the regular PERM processing times. Accordingly, regular PERM processing times should be between three and four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: March 2011.  DOL is processing PERM audits which have a priority date of March  2011.  This is still an improvement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately seven to nine months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
• Appealed applications: September 2009.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of September 2009.   There is slight improvement in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 24-26 months after the initial PERM was filed and its priority date established.
• “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 (see above for processing times).

Conclusion

The November 2011 PERM processing times report shows a slight improvement in the regular and appealed PERM processing times while the audited PERM processing times remain stable.    We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit and appeal processing times over the fall would continue in the winter as well.

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.

H-1B Quota Trends – Rate of Regular Cap H-1B Filings Increases; H-1B Masters Cap Reached

The numbers, as just reported for the past week, confirm that the rate of filing of new cap-subject H-1B filings is increasing slightly.  Now that the H-1B U.S. Master’s cap has been reached, all H-1B filings (regardless of level of education) will be counted under the regular H-1B cap.   As a result, we expect the average weekly rate of filings to be around 3,000-3,500, compared to 1,000-1,500 previously.     Additionally, we often see a rush of filings towards the end of the cap season as employers realize that the cap is about to close, so we anticipate the rate of filings to increase over the next few weeks.

H-1B Cap Likely to Close in Mid- to Late December 2011 — Last Call for Cap-Subject H-1B Filings

Given an estimated rate of H-1B filings of 3,500 for the next few weeks, and given that there are approximately 15,000 H-1B visa numbers left towards meeting the annual cap, it is likely that the H-1B cap for FY2012 will be reached towards the end of the year — likely in mid- to late December 2011.

Considering the fact that an H-1B petition takes at a minimum 7 to 10 business days to file, we urge all employers and future H-1B workers to start the H-1B filing process as soon as possible.    If you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

The U.S. Embassy in New Delhi and U.S. Consulates in Mumbai, Kolkata and Hyderabad will no longer accept or process applications for this visa category.  The blanket L category includes specialized knowledge professionals, executives and managers.

All other visa processing procedures remain unchanged.  Spouse and children visas (L2) and individual L visas (L1B and L1A individuals) which continue to be processed at all posts in India—Chennai, Hyderabad, Kolkata, Mumbai, and New Delhi.

As of October 5, 2011, DOL has shared some important statistics about their processing of PERM and LCA filings.

PERM Updates

1. Number of filings.   There have been 65,000 PERM applications filed over the year, an increase over the previous similar period.   The number of PERM applications processed during the same period was 73,000, which makes a decrease in the backlog of PERM cases by more than 50%.   More than half (56%) of the pending cases are in analyst review stage, 3-4% are in supervised recruitment, 25% are in audit, 14% on appeal and 2-3% are in sponsorship verification.     DOL has noted that audits and supervised recruitment cases are growing.
2. Processing times.  The current processing times are June 2011 for analyst review, February 2011 for audit, April 2009 for appeals and “current” for government errors.    The desired targets for PERM cases are 90 days for analyst review and 180 days average for all PERM cases.
3. Supervised recruitment.    Audits and supervised recruitment continue to increase.   55% of supervised recruitment cases are ultimately denied (of which 84% are lower-skilled and financial industry cases).   21% are withdrawn and 24% are certified.     Areas of focus for supervised recruitment are lower-skilled positions and positions in the financial sector plus areas where there are demonstrable layoffs of workers.   According to DOL, if an area shows double-digit unemployment, then there is a higher than average PERM audit/supervised recruitment chance (after accounting for the job type, etc.) — essentially, DOL takes into account employment trends across geographic areas and employment fields.

LCA Updates

1. Number of filings.   There were approximately 360,000 LCAs processed this year, of which 100% were processed within the target 7 business day window.   Approximately 8-9% are denied and most of the denials are due to FEIN verification mismatch, wage source, tracking number problems and boxes checked on the LCA.
2. FEIN verifications.   Target of processing is two business days and the DOL Chicago processing office receives approximately 140 requests for verification daily.

Prevailing Wage Determinations

DOL stated that they continue to decrease the backlog of prevailing wage determinations and, as of the end of October 2011, all PERM prevailing wage determinations should be within the “normal” processing timeframe of 60 days.   Please see our recent article on the prevailing wage processing times.

Conclusion

We appreciate that DOL is able to release these numbers on a periodic basis because they allow us to draw some (fairly reliable) predictions on the processing times.    Based on DOL reports and based on our firsthand experience from actual cases, we anticipate that PERM cases would take approximately 3-4 months.   Unfortunately, we anticipate higher PERM audits and PERM supervised recruitment cases, especially in certain areas and certain occupations.    Finally, the prevailing wage processing times are trending down and we hope to see processing times of 30-45 days soon.

Please do not hesitate to contact us if we can be of any assistance or if we can provide case analysis as part of our free initial consultation.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some advance sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 China and India will advance significantly over the next few visa bulletins.  A possible slowdown (or retrogression) may come in the summer of 2012.   EB-3 China and, specifically, India, will move very slowly and this category is “ridiculously” oversubscribed — very long times to be expected.   Family-based dates will advance gradually.

General Visa Number Trends

Mr. Oppenheim reiterated the fact that in the employment-based context, each green card application case is “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for and applying under the EB-2 category, Mr. Oppenheim noted that the EB-3 visa numbers are expected to remain oversubscribed and to move slowly forward.

However, Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few months.

With respect to family-based cases, Mr. Oppenheim noted that the demand, especially in the FB2 category has exceeded his expectations after the sharp forward movement at the end of 2010.   This sharp forward movement has generated a significant demand for FB2 preference category visas and he has had to retrogress significantly in order to control demand.   He indicated that slow forward movement is expected.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year.

EB-2 China and EB-2 India.  These two categories are where the most action is going to be over the next few months.  Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few visa bulletins.  It is possible that the December 2011 Visa Bulletin would advance EB-2 India and China to at least March 1, 2008 or even further.   Similar forward movement may be expected in the January 2012 and February 2012 Visa Bulletins.     Mr. Oppenheim cautioned, however, that if there is high demand (number of filings) in the EB-2 category, he may hold or even retrogress towards the summer of 2012.   He noted that there is usually a 4-6 month gap between filing of an I-485 adjustment application and when a visa number is actually requested and allocated — this means that EB-2 India and China I-485 applications filed in the fall will be need visa numbers in spring/summer of 2012 and this is when retrogression may happen.

EB-3 Rest of World (ROW).  This category is expected to move gradually slightly forward for the next few visa bulletins — anticipated forward movement of 3 to 4 weeks per month.

EB-3 China.  This category is expected to move slowly forward – by 1-3 weeks per month for the next few months.

EB-3 India.  Unfortunately, this category is, according to Mr. Oppenheim, “ridiculously oversubscribed” and forward movement, if any, will be very slow.    This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so).   This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   Mr. Oppenheim suggested that since the summer of 2007, no new EB-3 India cases have been filed and there is a significant number of EB-3 India candidates waiting for the priority dates to move forward.

EB-3 India and China – 70 Years Wait for Green Card?

There have been a number of recent articles and comments on the possibility that Indian and Chinese applicants who are in the EB-3 category may be facing a 70-year wait to obtain a visa number.   Mr. Oppenheim’s reaction:  that this is “plausible”.

As a background, according to a recent report, since the majority of employment-based green card filings are from India and China, the current per-country limit (which restricts the number of green cards awarded to any country to 7% of the total) places a ceiling on how many EB-3 green cards can be approved every year.   For Indians, the limit of EB-3 green cards that can be issued every year is fewer than 3,000.    The estimate (generally confirmed by Mr. Oppenheim) of the pending EB-3 cases is somewhere around 210,000 (primary EB-3 candidates plus family members).   As a result, a simple calculation shows that it may take around 70 years for an EB-3 India candidate to obtain a green card.

Unfortunately, the estimates were generally confirmed by Mr. Oppenheim who, while not specifically endorsing the 70-year wait period, confirmed that EB-3 India will be very slow going forward due to very heavy demand.  EB-3 China is in a very similar situation, even though the demand numbers are proportionally lower.

Visa Bulletin Predictions – Family-Based

Mr. Oppenheim was also able to provide some predictions and expectations for movement of the family-based visa numbers over the next few months.  Unlike the employment-based visa numbers, Mr. Oppenheim indicated that the family-based visa numbers are likely to be fairly predictable.

FB 2A.  According to Mr. Oppenheim, this family-based category has shown a high demand as a result of the sudden forward movement at the end of 2010 and, as a result, had to be retrogressed.   Now that the demand is fairly predictable, a gradual forward movement of 3-6 weeks per month is to be expected.

FB 2B and FB3.  Forward movement in the 2B category is expected to be 1-2 weeks per month.

FB4.   Forward movement of about one month per month is to be expected.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Although EB-2 is likely to move forward significantly over the next few months, the long term prospects of EB-3 China and India are not good.

Our office is prepared to handle the anticipated significant forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  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.

Design

Samples of the front and back are shown below:

No Changes to Application Procedures

Even though the design is changing, the procedures for applying for and obtaining an EAD card remain the same.   We have written extensively in the past on the delays associated with obtaining EADs of  more than 90 days and we hope that the new design would, at least, not make these EAD production delays even worse.  As a result, we continue to urge our readers and clients to apply for their EADs 90-120 days in advance of either current EAD expiration or in advance of anticipated employment start date.

Our office can help you with the EAD filing application – please contact us.

The Problem – H-1B Workers Changing Job Locations

Many consulting companies who hire H-1B holders place their workers at third-party client sites.   It is very common for these H-1B workers to change projects, end clients or simply to relocate to a different client site during their H-1B validity period.   In such cases, the question arises, What should be done to ensure that the H-1B employer and employee remain in compliance with the relevant H-1B regulations?

There is fair amount of confusion among H-1B employers and workers with respect to their obligations when there is a change in the work location.   Below we discuss what has been currently the recommended approach and also what USCIS has recently announced.

Currently:  Change in H-1B Job Location Requires a New LCA

Pursuant to previous USCIS guidance, our office often advises that when there is a change in the job location, but all of the other terms of an H-1B petition remain valid — title, duties, salary — then all the petitioning employer must do is file a new LCA for the new job location(s) and ensure that the proper posting and compliance for each new LCA has been done.

This approach is supported by the Adjudicator’s Field Manual 31.2(e) which states that “[t]he mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.”

The relevant regulations, in 8 CFR 214.2 specify that  “[t]he petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition.”   (emphasis added).   As a result, the question becomes what is “material change.”   In light of previous guidance, a change in location only was not considered a material change.

Possible Changes in Interpretation in “Material Change” – California Service Center and Upcoming USCIS Guidance

In recent discussions with the California Service Center, some of which is prompted by a number of “Notice of Intent to Revoke” notices, it becomes apparent that the California Service Center is starting to consider a change in the job location a “material change” and, as a result, requiring an H-1B amendment to be filed.   According to the California Service Center, as of August 10, 2011, “it is the position of [California Service Center] Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.”

It is worth noting that no such guidance has been issued by the other service center processing H-1B petitions – the Vermont Service Center.   As a result, an apparent conflict arises between both Service Centers — because the Vermont Service Center has not provided any guidance on the issue, it may be inferred that H-1B petitions filed with the Vermont Service Center do not require amendment when there is change in the job location.

Conclusion

We are aware that USCIS is working on official guidance on this topic which would, hopefully, provide clear guidance applicable to both service centers.  Unfortunately, there is no known or anticipated release date.   In the meantime, in abundance of caution, we are starting to recommend that H-1B amendment petitions be filed when there is a change of job location, at a minimum, for petitions with the California Service Center, but also for petitions filed with the Vermont Service Center.   If you are not sure whether a petition has been filed with the Vermont or California Service Centers, please see this guide to service centers and receipt numbers.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

In FY 2011 ICE’s Office of Enforcement and Removal Operations removed 396,906 individuals — the largest number in the agency’s history. Of these, nearly 55 percent or 216,698 of the people removed were convicted of felonies or misdemeanors — an 89 percent increase in the removal of criminals since FY 2008. This includes 1,119 aliens convicted of homicide; 5,848 aliens convicted of sexual offenses; 44,653 aliens convicted of drug related crimes; and 35,927 aliens convicted of driving under the influence. ICE achieved similar results with regard to other categories prioritized for removal. Ninety percent of all ICE’s removals fell into a priority category and more than two-thirds of the other removals in 2011 were either recent border crossers or repeat immigration violators.

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional processing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of October 1, 2011.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal takes 22 months (two months increase compared to our last report as of July 1, 2011);
• L-1 appeal takes 23 months (no change);
• I-140 EB1 Extraordinary Ability takes 16 months (increase of one month), Multinational Manager or Executive takes 20 months (increase of two months) while EB1 Outstanding Professor or Researcher category takes 9 months (increase of over three months);
• I-140 EB2 (Advanced Degree) takes 29 months (decrease by three months) while EB2 (NIW) takes 13 months (no change); and
• I-140 EB3 Skilled Worker takes 34 months (no change) while EB3 Other Worker takes 4 months on appeal (no change).

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

Background on the DOL Prevailing Wage Suspension

As a reminder, in August, DOL announced that they are temporarily suspending the issuance of non-H-2B prevailing wage determinations in an attempt to focus 100% of their resources towards completing the re-issuance of few thousand H-2B prevailing wage determinations under a court order.  Please see our August 2011 article on the prevailing wage suspension for more details.

Current Prevailing Wage Processing Times

As a result of the backlog of prevailing wage determinations, our expectations that prevailing wage determinations would take a significant period of time are confirmed.   Currently, we see prevailing wage determinations issued 10-12 weeks after filing of the request.   This is substantially higher than the 4-5 week average we used to see before DOL was ordered to redo previous H-2B prevailing wage determinations.   Our hope is that prevailing wage determination processing times would continue to go down as DOL is working through the backlog of requests.

Some PERM and H-1B Filings Continue to be Affected

Despite the fact that prevailing wage determinations are being issued, the delays of at least a couple of months for a prevailing wage determination remains a major concern for certain PERM/H-1B applicants who need to file their PERM/H-1B urgently.  Our office (along with many other immigration stakeholders) have voiced our concerns that many foreign workers who must file their PERM and/or H-1B in order to be able to fit within AC21 guidelines, expiring recruitment of other urgent reasons may be negatively affected by the slow processing of prevailing wages.   A proposal to DOL to create a procedure to accommodate expedited processing of prevailing wage requests has been submitted, but without any result (as of the time of this article).

Additionally, as a higher number of prevailing wage determinations are issued over the past and coming weeks, it is likely that a higher number of PERM cases will be filed over the upcoming few months — resulting in an increase in the PERM processing times over the next 6-9 months.

Conclusion

We welcome the fact that DOL has started processing and issuing prevailing wage determinations, and while we remain hopeful that DOL will continue allocating resources to bring prevailing wage processing times down to a month, we remain concerned that a number of foreign workers may lose PERM/H-1B benefits due to these delays.   Please do not hesitate to contact us if we can be of any assistance or if we can provide case analysis as part of our free initial consultation.

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of September 23, 2011, USCIS has received approximately 36,300 H-1B petitions counting toward the 65,000 cap (an increase of 4,100 over the previous two weeks).  Similarly, as of September 23, there were 17,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 1,000 over the previous two weeks).

H-1B Quota Trends – Slow Rate of Filings; Regular Cap H-1B Filing Slightly Up; H-1B Caps Are Likely to Remain Open for Several Months

The numbers, as just reported for the past two weeks, confirm that the rate of filing of new cap-subject H1B filings is fairly slow, and remaining steady.  We have been noticing a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap, although the rate over the past month has increased slightly to 1,500-2,000 per week.  The rate for the U.S. Masters H-1B cap has remained steady – at 500-700 per week.   More than six months into this H-1B cap filing season, we can draw some (fairly) reliable conclusions on how long the cap would remain open: given the rate of filings for the past several weeks and since the H-1B cap opened, it is likely that the H-1B cap would remain open well into 2012.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.

Earlier this year, in March, the Mumbai Consulate suspend all H and L visa stamp processing due to aging infrastructure.   We are delighted to see that the Mumbai Consulate is now able to process H and L visa stamp applications on a regular basis.

Please see the Mumbai Consulate page for more information and details on scheduling an appointment.   Also, please do not hesitate to contact us if we can be of any assistance in preparing and filing H or L visa stamp applications at the Mumbai or other Consular sections.

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 5, 2011.

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-2013, 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, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, 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.   Also, nationals of Poland and Sudan are eligible under DV-2013.

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.

Report Results and Recommendations

According to the audit report, an estimated 18% of H-1B workers analyzed in the relevant sample may have used their SSN for a purpose other than to work for the H-1B sponsor employer.   This includes 11% of H-1B workers who had posted wages from another an employer other than their H-1B sponsor employer.   This also includes 7% H-1B workers who had no posted wages from 2007 through 2009.

While we think that the audit is based on a very small sample (of 200) and while we believe (and the report acknowledges) that there may be some absolutely legitimate explanation for what the reports counts as unlawful employment, the numbers of possible irregularities is very high.   For example, the report acknowledges that some H-1B employees may be paid their H-1B wages abroad, or that some employees may have transferred their H-1B petition to a new employer (for example, by porting H-1B under AC21 and working upon filing of the H-1B paperwork, and not upon approval) which may not have been reflected in the data used in the audit report.

Conclusion

Notwithstanding these possible explanations for the high number of irregularities, the OIG makes the recommendation that DHS and SSA establish a data-matching protocol for identifying H-1B workers who are working for employers other than the H-1B sponsor employer or who are not working at all.    It is possible that, after such protocol is established, DHS would take a more proactive role in identifying and revoking H-1B petitions for workers who are not employed by the respective H-1B employer or to seek to identify H-1B workers who are in violation of their H-1B status by working for another (and non-H-1B sponsor) employer.

The OIG report highlights the need of proper H-1B compliance for both H-1B employers and employees.   Our office routinely advises H-1B employers on proper H-1B and I-9 compliance and H-1B employees on proper steps to maintain valid status — please do not hesitate to contact us if we can be of any assistance or if you have any questions or comments.

DOS/USCIS to Stop Approving EB Immigrant Visas Until October 1

As a result of reaching the annual EB visa number limit, DOS has stopped approving immigrant visas in all of the employment-based categories.   Employment-based immigrant visas at U.S. Consular Posts are being held or returned to applicants for resubmission on or after October 1.

Similarly, DOS has advised USCIS that due to reaching the quota, no new I-485 adjustment of status applications would be approved for the remainder of the fiscal year (which ends on September 30, 2011).    There may be a limited number of I-485 approvals between now and October 1 but such approvals are based not on changes in the availability of visa numbers, but due to the fact that some I-485 cases have had their visa number already requested, authorized and allocated under the FY2011 limit.

Conclusion

Some of our clients and readers have already experienced returned passports by US Consular section around the world with notations indicating that they should resubmit their application on or after October 1 once the numbers become available again.     As a result of this memo to USCIS, we expect that the number of I-485 approvals for EB cases for the remainder of the month of September to drop to close to zero.

The good news is that after October 1, and in accordance with the October 2011 Visa Bulletin, normal employment-based immigrant visa processing would resume.    Please do not hesitate to contact us if we can be of any assistance and please feel free to subscribe to our weekly immigration newsletter to obtain related news and developments.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of August 22, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

• Regular processing: May 2011.  DOL is processing PERM applications with priority dates in May of 2011.  This suggests that there is a slight increase in the regular PERM processing times. Accordingly, regular PERM processing times should be between four and five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: December 2010.  DOL is processing PERM audits which have a priority date of December 2010.  Although this does not continue  the trend of substantial improvement in the audited PERM processing times we saw in June 2011, it is still an improvement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 9 months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
• Appealed applications: January 2009.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of January 2009.   There is generally no change in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30 months after the initial PERM was filed and its priority date established.
• “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 (see above for processing times).

Conclusion

The August 2011 PERM processing times report shows a slight delay in the regular PERM processing times while the remainder of the PERM processing times remain stable.    It may be disappointing to some of our clients and readers to see PERM processing times increase from as little as a couple of weeks earlier this year to four to five months today.    We hope that DOL would be able to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit processing times over the summer would continue in the fall and winter as well.

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.