Labor Immigration Law

United States Labor Immigration Law News and Analysis

DOL Articles

PERM Statistics from the Department of Labor (FY2014 Q1)

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2014 (October 1, 2013 to December 31, 2013) on their processing of PERM cases and we are happy to share them with our clients and readers.    Please note that this period reflects the period of the partial government shutdown where DOL’s operations were suspended for 16 days.

DOL Processing Statistics (First Quarter, 2014 Fiscal Year)

PERM

According to the report, during the quarter, there were 17,623 cases received (slight 3% increase from the same period in the prior year), 9,076  certified (notable decrease by about 25% from the prior year), 1,039 denied (another notable decrease) and 949 withdrawn (about 50% increase).  Since the net amount of applications filed exceeded the number of applications adjudicated, DOL’s PERM load has grown during the quarter by about 7,000 cases.  This is also evidenced by the increasing PERM processing times (see the most recent report from February 2014).

Of the pending applications at DOL, 64% are pending analyst review (major increase from a year ago when the percentage was 47), 25% are in audit (decrease from 37%), 9% are on appeal (decrease from 14%) and 1% are in sponsorship verification (at filing).  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.    It is also notable that the percentage of cases pending analyst review have increased very substantially, while the audits have decreased somewhat.

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 first quarter, there were approximately 29,612 prevailing wage determination requests filed — of those, 23,585 were for PERM cases (decrease of 3,000 or 8%), 1,404 were for H-1B cases (decrease of 400 or 21%) and 4,625 were for H-2B cases (notable increase of 48%).

In terms of activity, less prevailing wage determinations were issued in Q1 compared to prior quarters – 23,850 (most likely due to the government shutdown).   The number of pending applications has increased compared to a year ago significantly – there are 19,972 prevailing wage cases pending on December 31, 2013 compared to 11,519 on December 31, 2012.

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, in addition to 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 low compared to other quarters during the year.    But this report was affected by the government shutdown in October 2013.    Even then, there were 67,645 H-1B LCA filings in the first quarter, an increase over the prior year’s period which may be attributed to the rush of LCA filings post-government shutdown.    During the quarter, there were 69,334 LCAs certified for 144,657 positions (one LCA can include more than 1 position).

According to DOL, 79% of the LCAs are processed timely within seven days of receipt (last year’s period metric was 99%).     The rate of LCA denial is very small (1,858 out of 79,304 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 first quarter of the FY2014 was a turbulent time at DOL due to the government shutdown and the reports provided for this period reflect this.      We are hopeful that DOL would work on decreasing its load and processing times, especially for the PERM cases where the processing times have increased significantly.    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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Current PERM Processing Times (February 5, 2014)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of February 5, 2014.

Current PERM Processing Times

Most notable is the significant processing time for PERM applications – while there is no change in the processing time (7-8 months) for regular PERM cases, we easily look back at 2-3 month processing times as recently as a year or so ago.   The processing time of PERM applications in audit remains unchanged (but significantly long) as well compared to last month.   The processing times, as reported by DOL, are as follows:

  • Regular processing: June 2013.  DOL is processing PERM applications with priority dates of June 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  There is no significant change in the regular processing times compared to the last (January 14, 2014) report.
  • Audited applications: November 2012.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of November 2012.  This processing time has remained unchanged compared to the January 14, 2014 report.   Accordingly, audited PERM applications are processed approximately 15 -16 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): February 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in February 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 February 2014 PERM processing times report shows that the PERM processing times remain largely unchanged compared to our report from a month ago.   Over the past several months, we have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to control and bring down the PERM processing times especially since they were as short as two months not long ago.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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OFLC Annual Report Details DOL Employment Visa Processing

The Department of Labor (DOL) has released the most recent annual report for the Office of Foreign Labor Certification (OFLC).    Even though the report was recently released, it is for the 2012 fiscal year (FY2012) which covered the period between October 1, 2011 and September 30, 2012.    While we understand that the relevant period is not very recent, the annual report provides a very detailed picture and analysis of the various visa application processes handled by DOL and also provides very detailed statistics and graphs.

Highlights of the OFLC Report

The report is a 136-page document full of interesting statistics and patterns.  We will not provide a very detailed analysis of most of the areas in the report; however, we would share some interesting points we saw in the report.

  • In FY2012 OFLC processed almost half a million applications for 1.2 million positions.
  • The H-1B and H-2A programs saw increased in the number of applications (16% increase for H-1Bs); while PERM and H-2B decreased (10% decrease in PERM and 4.5% decrease for H-2B).
  • The PERM approval rate was approximately 81%.
  • The most active occupations were, not surprisingly, IT positions (Software Developers, Analysts, Electronics Engineers), followed by Admin Services Managers and Accountants/Auditors.
  • India is the leader in PERM cases (55%), followed by China (6%), Canada (5%), South Korea (5%) and Philippines (3%).
  • California is the state with most PERM cases, followed by New Jersey (decreasing trend), New York (decreasing trend), Texas (stable) and Washington (increasing trend – mainly due to Microsoft).
  • The majority (70%) of the certified PERM applications were for STEM degree holders (of which, about 95% were for IT/Engineering).    The same proportion was noted in the H-1B/LCA filings.

Conclusion

We invite our clients and readers who have an interest in the extensive details provided in the report to review it.   Our summary is simply intended to draw some interesting (to us, at least) highlights.   Although the report reflects a time period ending more than two years ago, especially in certain fast-pace industries, it still provides a valuable description of the process and some interesting trends and patterns among the various DOL immigration processes.

We 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 this article.      Also, 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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Current PERM Processing Times (January 14, 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 January 14, 2014.

Current PERM Processing Times

Most notable is the significant processing time for PERM applications – while there is no change in the processing time (7-8 months) for regular PERM cases, we easily look back at 2-3 month processing times as recently as a year or so ago.   Also, PERM applications on audit now take a month longer compared to last month.   The processing times, as reported by DOL, are as follows:

  • Regular processing: May 2013.  DOL is processing PERM applications with priority dates of May 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  There is no significant change in the regular processing times compared to the last (December 6, 2013) report.
  • Audited applications: October 2012.  DOL is processing PERM audits which have a priority date of October 2012.  This processing time has worsened by a month compared to the December 6, 2013 report.   Accordingly, audited PERM applications are processed approximately 15 -16 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): January  2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in January 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 January 2014 PERM processing times report shows that the PERM processing times remain largely unchanged compared to our report from a month ago with the exception of PERM audit applications where the processing time has increased by a month.   Over the past several months, we have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to control and bring down the PERM processing times especially since they were as short as two months not long ago.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Current PERM Processing Times (December 6, 2013)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of December 6, 2013.    We should note that this processing times report is the first to be released after the 16-day government shutdown in October 2013 so the processing times are affected by DOL being closed for close to three weeks during October.

Current PERM Processing Times

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

  • Regular processing: April 2013.  DOL is processing PERM applications with priority dates of April 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  There is no significant change in the regular processing times compared to the last (November 6, 2013) report.
  • Audited applications: October 2012.  DOL is processing PERM audits which have a priority date of October 2012.  This processing time has remained constant compared to the November 6, 2013 report.   Accordingly, audited PERM applications are processed approximately 14 -15 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):  December 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in December 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The December 2013 PERM processing times report shows that the PERM processing times remain unchanged compared to our report from a month ago.   However, over the past several months, we have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to control and bring down the PERM processing times especially since they were as short as two months not long ago.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Current PERM Processing Times (November 6, 2013)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of November 6, 2013.    We should note that this processing times report is the first to be released after the 16-day government shutdown in October 2013 so the processing times are affected by DOL being closed for close to three weeks.

Current PERM Processing Times

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

  • Regular processing: March 2013.  DOL is processing PERM applications with priority dates of March 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  The additional one- month increase in the processing times (compared to the last September 2013 report) would be disappointing news to many PERM applicants; however, we are hopeful that DOL would be able to catch up and work on decreasing this metric.
  • Audited applications: September 2012.  DOL is processing PERM audits which have a priority date of September 2012.  This processing time has increased by a month or so compared to our last report as of September 5, 2013.    Accordingly, audited PERM applications are processed approximately 14 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):  November 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in November 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The November 2013 PERM processing times report shows slight (1-2 months) increase in the regular PERM processing times and a one-month increase in the PERM audit processing times.    We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several months ago they were as short as two months.   We also believe that this month’s report was affected by the government shutdown.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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U.S. Federal Government Reopens Today, October 17th – DOL Backlogs Expected

The 16-day long partial U.S. federal government shutdown has ended last night after both chambers of the U.S. Congress passed a (temporary) budget measure (more on this below) and, after the President signed it, reopened the U.S. federal government.  As of today, October 17, 2013, federal workers are expected to be on the job.   However, due to the 16-day shutdown and the late night order to reopen, it is expected that it would take some time (days or weeks in some cases) for federal agencies and operations to resume normal operations.     We have written over the past 2-3 week on the impact on immigration caused by the partial government shutdown and while we are happy to see the government resume operations, we expect that immigration-related services to be, at the very least, heavily backlogged for some time.

Department of Labor Likely to be the Major Cause of Immigration-related Delays

Many U.S. employment-related visas (immigrant and non-immigrant) rely extensively, at least during some portion of the process, on the Department of Labor (DOL) – for example, H-1B work visas require a Labor Condition Application (LCA) to be certified by DOL.   An initial stage of the employment-based green card is the filing and the approval of a prevailing wage determination by DOL, followed by the filing and approval of a PERM Labor Certification.    As we had commented over the past few weeks, DOL was severely affected by the shutdown with the majority of DOL’s workers being furloughed and many DOL electronic systems being shutdown over the past 16 days.

As of the time of publication of this article,  DOL’s electronic systems for LCA and PERM Labor Certification processing were still not operational.  We hope that as DOL IT workers trickle into work this morning, these systems will become operational.   Unfortunately, we also expect that these systems may be overwhelmed with traffic as many employers and their law firms (ours included) will rush to file all of the LCA and PERM Labor Certification applications which were put on hold over the last 16 or so days.   We hope that DOL’s systems will be able to accommodate the traffic and the demand — our general estimates are that there may be many thousands of LCA applications waiting to be filed.    With this in mind, we caution our clients and readers to exercise caution and patience in the first few days after DOL reopens.

In addition to the new rush of filings, DOL is already sitting on a number of applications which were filed and pending as of October 1st when the government closed.   This will only add to the backlog of applications.   All of this is likely to result to dramatic increase (at least and hopefully only short-term) in the processing times for LCA and PERM applications.    Even before the shutdown, PERM applications were experiencing some of the longest processing times for the past few years; the shutdown would not help.

USCIS’s E-Verify System Should be Back Online

The major impact on immigration caused by the government shutdown has been via the shutdown of DOL’s operations, as discussed above.    However, other immigration-related functions were also affected.   Most importantly, the E-Verify system should be back online soon (it was not as of the time of this article) and would allow employers to complete a number of pending (and delayed) employment verification checks.   During the shutdown, USCIS advised E-Verify employers that the ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown.    Now that E-Verify is expected to go back online at any time,  employers must rush to complete these E-Verify checks.     An important note is that the fact that an employer did not have to do an E-Verify check during the shutdown period, does NOT affect the Form I-9 requirement — employers must still (and should have) completed the Form I-9 no later than the third business day after an employee started work for pay.

Careful Planning and Preparation for Delays and Backlogs Important

In light of what we expect to be delays and backlogs, especially at DOL due to the significant volume of new applications to be filed, we caution employers and applicants to anticipate and plan for delays.   We understand that many H-1B applications (especially extensions for H-1B petitions which are expiring) are held by DOL and it may cause H-1B petitions to expire without an ability to extend.   There are ways to handle a late-filed H-1B petition with USCIS and request a retroactive H-1B approval date due to these extraordinary circumstances.    But there are also cases where H-1B workers desperately rely on the filing (or approval) of a PERM application to be able to continue extending their H-1B beyond the six-year H-1B limit and in those cases, there may not be many options to “fix” the possible damage caused by the delay.

Another Shutdown on the Horizon?

The deal which the U.S. Congress reached last night to fund and reopen the government and raise the U.S. debt ceiling is, unfortunately, a short-term deal.   Under the current agreement, the government is funded through January 15, 2014 and the debt ceiling is lifted until February 2014 or shortly thereafter.    What this all means is that if Congress does not make a budge agreement over the next 2-3 months, it is entirely possible that there will be a similar government funding fight and a possible government shutdown on January 15, 2014, or only three months from now.     We hope this is not the case, but we still would like to caution our clients and readers to this possibility.

Conclusion

Over the past few weeks we have consulted with anxious employers and applicants whose immigration status and processes have been severely impacted by the shutdown.    With this in mind, while we are hopeful that the reopening of the government and DOL, specifically, would be smooth, we caution employers to consider alternatives if they or their employees rely on a time-sensitive action by DOL.    Our office is certainly happy to consult and provide suggestions.    Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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Federal Government Shutdown and Immigration – Update (October 3, 2013)

Our clients and readers are aware that today is the third day the U.S. federal Government is partially closed due to the lack of congressionally-authorized funding.    A week ago, on the eve of the (possible, at the time) shutdown, we shared our expectations on what kind of immigration-related government services will be affected and how.    While our predictions were correct, our office continues to receive numerous calls and emails seeking clarification on how the shutdown may affect certain immigration services.    As a result, we would like to provide an update as to how the partial Government shutdown affects immigration-related services and cases.

USCIS Continues to Operate (Almost) Normally; E-Verify Closed

Because it is a fee-funded agency (applicants pay a fee when they submit an application),  USCIS is not affected by the shutdown and remains open.  Pending or newly filed applications with USCIS are reviewed within the normal processing times – including premium processing cases.    USCIS service centers and field offices continue to adjudicate cases normally; additionally, Infopass and ASC biometrics appointments should not be affected.

It should be noted that many USCIS cases are related to other agencies.  For example, H-1B petitions require a Labor Condition Application (LCA) be certified by the Department of Labor.  As a result, when the Department of Labor is closed (see below), at least some H-1B cases which are due to be filed will be delayed.

USCIS has indicated that the E-Verify system will be closed for the duration of the shutdown.    This means that E-Verify employers will not be able to process new hires’ E-Verify checks; in addition to any E-Verify system-related activities.   USCIS has advised E-Verify employers that the ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown.   Please note that the fact that an employer does not have to do an E-Verify check during the shutdown period, does NOT affect the Form I-9 requirement — employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.

Department of State/Visa Processing Normal

The Department of State has indicated that many Consulates’ visa processing functions would continue as scheduled and visa interviews and processing will not be affected.   We hear confirmations from clients and readers from different consular posts that visa processing is normal.    We still caution visa applicants to double-check with the Consulate whether there may be any changes in the interview scheduling or processing.

Cases processed at the National Visa Center (NVC) should not be affected as well by the shutdown as they are mainly processed by contractors under existing funding agreement.

Generally, the State Department has been designated to be a “national security agency” which means that it would continue working throughout the shutdown.   However, in the cases where State Department operations are in other federal buildings which are affected by the closure,  such State Department operations may be disrupted because of lack of access to the facility.

CBP Border Processing Continues Without Disruption

Customs and Border Protection (CBP) operations should continue normally – most of CBP’s staff is to remain on the job.    While delays at the border processing are possible, they should not be significant and should not be primarily caused by CBP staffing issues.

Department of Labor – Most Operations Closed; LCA/PERM Applications On Hold

Unlike USCIS and the State Department, the Department of Labor (DOL) is significantly affected by the shutdown and its LCA/PERM operations (and websites) are suspended for the duration of the shutdown.

As a result, no new LCAs can be filed and pending LCAs are not subject to the seven business day review requirement and will not be reviewed and certified until DOL reopens.  This is a significant problem for employers and employees who need to have a new LCA filed and approved in connection with an expiring H-1B petition or in connection with an H-1B amendment.    Without a certified LCA,  an H-1B petition with USCIS cannot be filed.    This creates significant challenge to many employers and individuals whose H-1B petitions must be filed or amended and especially for those individuals whose status may be expiring.    In the past and in exceptional circumstances, USCIS has agreed to accept H-1B petitions without a certified LCA; however, USCIS has not yet confirmed (as of the time of this article) that they would do so this time around.

Similarly, no new PERM cases can be filed and pending PERM cases will be put on hold.   This also can be a significant problem to many because the PERM process has very strict deadlines and a PERM case (and its entire recruitment) may have to be redone if a PERM application cannot be filed within the applicable filing window.   Additionally, filing a PERM by a certain date is critical for many H-1B workers who are seeking to be able to continue extending their H-1B petitions beyond their six-year H-1B limit.     A delay in filing a PERM may cause certain H-1B workers to run out of H-1B time without an ability to continue extending H-1B on the basis of a PERM pending for more than 365 days.

On a related note, prevailing wage determination requests are also shutdown so no new requests can be filed while pending requests are on hold.    A delay in the issuance of a prevailing wage determination may affect a number of PERM cases where there is a timing concern – such as six-year H-1B limit or expiring PERM recruitment.

Shutdown in DOL means that processing times and backlogs would be significant once the Government and DOL reopen.    Once DOL reopens we expect that there will be a rush of LCA, prevailing wage and PERM filings.   Similarly, the cases already pending will have to be prioritized and reviewed.    This is likely to contribute to a delay in getting LCAs, prevailing wage requests and PERMs certified (especially since the PERM processing times are substantial already).

Conclusion

While many immigration-related government operations remain open, there are many essential functions (at DOL, primarily) which are closed and will create substantial difficulty and anxiety to a  number of applicants – mainly those who  need to file a new H-1B or a PERM Labor Certification.     The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.

We urge clients who have time-sensitive cases which may be affected by the government shutdown to plan accordingly.   We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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Current PERM Processing Times (September 5, 2013)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of September 5, 2013.

Current PERM Processing Times

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

  • Regular processing: February 28, 2013.  DOL is processing PERM applications with priority dates of about February 28, 2013.  Accordingly, regular PERM processing times should be around six to seven months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  While there is no additional delay this month (good news), we and many of our readers would be disappointed by the significant PERM processing times right now.
  • Audited applications: August 31, 2012.  DOL is processing PERM audits which have a priority date of August 31, 2012.  This processing time has increased (again) by one month compared to our last report as of August 5, 2013.    Accordingly, audited PERM applications are processed approximately twelve months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer):September 3, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed on or about September 3, 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The September 2013 PERM processing times report shows no change in the regular PERM processing times and a one-month increase in the PERM audit processing times.    We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several months ago they were as short as two months.  The fact that the regular PERM processing times remain steady is a cautiously hopeful sign, but there is much room for improvement.   Also, we should caution that additional PERM delays are possible due to the (strong, as of the time of this writing) possibility that the U.S. federal government would close on October 1st.   If this happens, an additional delay in the PERM processing times, across the board, is expected.

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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Current PERM Processing Times (August 5, 2013)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of August 5, 2013.

Current PERM Processing Times

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

  • Regular processing: February 8, 2013.  DOL is processing PERM applications with priority dates of about February 8, 2013.  Accordingly, regular PERM processing times should be around six months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  Unfortunately, this category has seen additional delays (from five, to five-and-half months and now to six months).
  • Audited applications: August 31, 2012.  DOL is processing PERM audits which have a priority date of August 31, 2012.  This processing time has increased slightly (by one month) compared to our report as of June 4, 2013.    Accordingly, audited PERM applications are processed approximately eleven months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): August 5, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed on or about August 5, 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The August 2013 PERM processing times report shows a slight additional increase in the regular and appealed PERM processing times, and a welcome improvement in the PERM appeal (motion for reconsideration) processing times.   We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several months ago they were as short as two months.

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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