Labor Immigration Law

The Department of Labor has provided an update on the current PERM processing dates as of July 31, 2009.  They are as follows:

• Regular processing: November 2008.  Unfortunately, there is no movement in comparison to the April 30, 2009 report which also reported November 2008, resulting a net additional delay of three (3) months for regular PERM applications.
• Audited applications: October 2007.  This is movement forward of only one (1) month in comparison to April 30, 2009, resulting a net additional delay of two (2) months for audited PERM applications.
• Appealed applications: July 2007.  This is movement forward of only one (1) month in comparison to April 30, 2009, resulting a net additional delay of two (2) months for audited PERM applications.

Based on these numbers, we can conclude that unfortunately the May-July 2009 period does not bring any improvement in the PERM processing times.   In fact, based on the July 31, 2009 numbers, regular PERM applications are expected to take approximately 9 months.

The Department of Labor (“DOL”) has released a quarterly report covering the first quarter of 2009 (ending on March 31, 2009) which report indicates the performance measurements for four categories of labor certifications performed by DOL:

H-1B Labor Condition Applications (“LCA”).  The target performance rate set by DOL is seven (business) days.  For the first quarter, the performance rate was 100% of the goal, meaning that DOL responded to all  LCA applications within seven days.  This however, reflects statistics from the old, pre-iCert, system which used to provide instant LCA certification.  Under the new iCert LCA system, the LCAs are reviewed manually and from our experience an LCA takes up to 7 business days to certify.  The iCert system went into effect on June 30, 2009.

PERM Labor Certifications.  The target performance rate is review within six months of filing of PERM.  Unfortunately, the reported rate of PERM certifications which fell within the target of six months is only 11%.  This is very low performance rate and supports our experience from earlier this year that DOL took upward of 9 months to certify PERM applications.  DOL’s explanation is that such increased processing time is due to increased integrity checks in light of declining economy and continued PERM filings for positions where there are U.S. workers available (for example, financial services).

H-2A and H-2B.  The performance target for H-2A is 15 business days while the performance target for H-2B is 60 days.  The on-target performance was 38% for H-2A and 31% for H-2B.  An important note is that the H-2B regulations were revised as of January 2009 and the numbers do not reflect properly the new H-2B rules.

Conclusion.  There seems to be increased delays overall in all categories.  Most troubling are the significant PERM delays.  We have written previously about the delays in PERM processing (which seem to be improving slightly) but  the PERM performance chart for the past eight quarters suggests that return to 6-month processing PERM is far.  Additionally, LCAs for H-1B applications now take up to seven business days which adds a week of processing to all H-1B applications.  We urge our clients to factor this processing time when planning business and employment decisions with respect to H-1B workers.

The Department of Labor (“DOL”) has released some numbers about their pace of PERM processing.

There are about 58,000 applications currently pending of which 54% are under final review, 38% are in audits, 6% are on appeal and the remaining 2% are subject to  employment verification checks or othe.

DOL also reported that cases which are under supervised recruitment have a 25% withdrawal rate, 45% denial rate, 11% certification rate and about 20% remain pending.  Unfortunately, DOL did not report the total number of these cases as of the date of their report.

What Do These Numbers Mean?

Although the number of pending PERM cases is higher than the numbers as of December 31, 2008 (which was 53,200), we expect to see processing PERM times descrease slightly over the upcoming months.   We have written about the cause of the PERM processing delays in the past and it seems that although the overall number of pending cases has not decreased substantially, the processing times have gone done slightly.  We expect this trend to continue, although we do not expect major processing time improvements.

With respect to supervised recruitment, the numbers do not look encouraging with a 11% certification rate for each case which has been ordered for supervised recruitment.  This could be due to the fact that many employers decide to withdraw the case and refile (which explains, in part, the high withdrawal rate of supervised recruitment PERM cases of  25%).

We hope that with the introduction of the new iCert PERM portal  later this year and with the economy slowdown, the PERM processing times should improve.

The Department of Labor (“DOL”) has provided some updates on their operations and processing during the annual AILA conference.

DOL Priorities

DOL is working on (1) increasing the amount of supervised recruitment from the Atlanta National Processing Center by October 1, 2009; (2) centralizing the processing of all prevailing wage determinations; and (3) centralizing all help desk functions in the national Office of Foreign Labor certifications in Washington, DC by January 1, 2010.

PERM under iCERT Portal Delayed

The PERM section of the new iCert portal will take longer to complete than anticipated and will not be deployed until after September 2009.  Exact deployment date could not be provided.

The Department of Labor has provided an update on the current PERM processing dates as of April 30, 2009.  They are as follows:

• No audit: November 2008 (a month ago, DOL was processing PERM applications filed in April 2008, this is a significant positive development);
• Audit: September 2007 (no change from a month ago);
• Appeal: June 2007 (no change from a month ago).

We have noticed that PERM system improvements and the emphasis on efficiency at the Atlanta PERM center have improved the PERM processing times from approximately 9 months in March 2009 to around 6-7 months as of end of April 2009.

The Department of Labor has provided an update on the current PERM processing dates.  Unfortunately, delays in PERM processing still remain (we wrote about these in the past:  1 | 2 | 3).  During the Spring 2009 AILA conference, DOL has provided some updates on the current PERM processing dates.  They are as follows:

• No audit: July 2008;
• Audit: September 2007;
• Appeal: June 2007.

Hopefully, the upcoming PERM system improvements and the emphasis on efficiency at the Atlanta PERM center will improve the current 9-month PERM processing time.

We have mentioned previously in some of our articles the planned replacement of the current PERM and LCA filing systems.  Although the replacement of these two systems does not necessarily affect employees and employers as much as it affects immigration attorneys (as immigration attorneys prepare these filings most often), it is helpful to monitor the developments in these IT systems as they may indicate trends in PERM and LCA processing times and procedures.

Initially, the Department of Labor was scheduled to release new IT systems to handle PERM (part of some employment-based green card application processes) and LCA (part of the H-1B work visa application process) filings with new and enhances systems.  Last Friday, March 20, 2009, DOL announced that the launch of the new PERM filing system will be delayed from July 1, 2009 to September 2009 due to technical issues.

At the same time, DOL has confirmed that the LCA filing system will be launched on April 15, 2009, with concurrent use of the old and new systems between April 15, 2009 and May 15, 2009.  After May 15, 2009, it is anticipated that only the new LCA filing systems will be available for preparing and filing LCAs.

We have been receiving calls and emails from employment-based applicants for green card asking us whether they have a second green card process started by a new company.  Generally, the inquiries are from EB-3 beneficiaries who are eligible and would like to start an EB-2 application.  Most of these inquiries come from individuals from countries for which visa numbers are not available or severely backlogged (India, for example).

Beneficiaries who have an I-140 approved are eligible to retain their priority date if they have another I-140 approved for the same or a different EB category.   Under 8 CFR § 204.5(e), if more than one I-140 is approved for a single beneficiary, the beneficiary gets the benefit of the earliest priority date even if the I-140s are approved in different EB categories.

In a recent USCIS/AILS Liaison exchange, USCIS has acknowledged that the approval notice for the second I-140 should automatically reflect the earlier priority date if the beneficiary is eligible to retain it.  However, USCIS has confirmed our practice at the Capitol Immigration Law Group to clearly mark the the second I-140 filing (by bright cover sheet and including a copy of the earlier I-140 approval notice showing the earlier priority date).   USCIS has advised that second I-140s which do not retain the earlier priority date should be corrected by calling the NCSC (or Division 12 at CSC).

Last week we wrote about the substantial delays in PERM processing.  We have received numerous responses, inquiries and reactions from companies and immigrants who are concerned by this trend.  According to DOL:

[T]he delay was due to change in contractors and the subsequent period of hiring and training new contractor staff for the Atlanta National Processing Center.

One of the reasons that case processing slowed in the 4th quarter of 2008 was that DOL was hiring and training contractor staff for the Atlanta National Processing Center. The contract was awarded last summer, a losing contractor appealed and won the appeal, then the initial contractor sued. The workers did not come on board until last September 2008. The Atlanta Processing Center has only 40 federal employees and the rest of the staff consists of contractors. With the contractors now in place, the pace of processing has picked up. Only 4,571 PERM applications were completed in October-December 2008 but 3,500 PERM applications were completed in January 2009. However, DOL expects this will level off and processing rates will slow down again because of the limited number of federal employees available to review the contractors’ work.

The January number of 3,500 PERM applications is reassuring.  We will continue monitoring information from DOL regarding PERM processing timelines and provide updates to this important to many of our readers topic.

In addition to the substantial delays in PERM processing, the Department of Labor (DOL) has indicated that in light of the substantial layoffs and increased unemployment, it would impose a heavier scrutiny on PERM labor certification applications which are the first step of any green card process.

In a response to a question posed at a February 3, 2009, DOL stakeholder meeting, DOL indicated that:

The rising unemployment rate is also a big concern to DOL. 180,000 jobs were lost in the last month, and 1.2 million jobs were lost in the last five months. Unemployment funding is in trouble in many states. OFLC is trying to integrate labor market information from various sources within DOL. In response to continued layoffs, DOL will increase supervised recruitment.  [...]DOL will carefully analyze actual data regarding layoffs and not react solely based on news reports. However, the clear message is that we should expect more supervised recruitment as layoffs affect new industries.

This message from DOL seems to indicate that an increased scrutiny should be expected in certain PERM filings.  Although it is difficult to predict the kind of cases to which DOL will impose supervised recruitment, it is likely that, for example, financial analyst positions in New York City will be given extra attention.