U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Thu, 19 Jan 2012 14:46:25 +0000

The Department of Labor has provided some updates (as of January 6, 2012) on their processing of employment-based cases and we are happy to share them with our clients and readers. This kind of information is generally available, but if rarely combined in one place while it is still fairly recent information.

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During the quarter, there were 13,000 cases received, 9,400 certified, 2,400 denied and 600 withdrawn.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.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Thu, 12 Jan 2012 15:00:18 +0000

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 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.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Thu, 08 Dec 2011 16:39:43 +0000

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.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Thu, 10 Nov 2011 16:15:25 +0000

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.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Wed, 02 Nov 2011 13:36:27 +0000

Due to the significant number of PERM-based green cards and H-1B work visa applications (including the required Labor Condition Application, or LCA), our office constantly monitors developments at the Department of Labor (DOL) which controls the review of PERM and LCAs.

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

PERM Updates

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.
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.
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

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.
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.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Thu, 06 Oct 2011 16:21:46 +0000

Many of our clients and readers are asking us on updates regarding the Department of Labor’s (DOL) prevailing wage determination process. We are happy to report that according to DOL reports and according to our first-hand experience, prevailing wage determinations are issued and they are (slowly) starting to return to normal.

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.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Thu, 15 Sep 2011 14:12:54 +0000

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.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Wed, 17 Aug 2011 20:51:12 +0000

Many of our clients and readers are by now aware of the delays associated with the Department of Labor (DOL) processing requests for prevailing wage determinations. Unfortunately, DOL has confirmed that they have temporarily suspended the processing of all regular prevailing wage determination requests until DOL meets its obligations under a court order to re-process approximately 4,000 H-2 B prevailing wage determinations.

Background of the Need to Reprocess H-2B Prevailing Wage Determinations

Pursuant to a June 15, 2011 ruling, the U.S. District Court for the Eastern District of Pennsylvania ordered DOL to reissue approximately 4,000 H-2B prevailing wage determinations in order to accurately reflect the new H-2B wage rates that will apply for H-2B employment beginning on or after September 30, 2011 (the new government fiscal year). The June 15, 2011 court order is related to an August 30, 2010 decision in CATA v. Solis, where the District Court ordered DOL to put in place new H-2B prevailing wage rules.

DOL Effectively Suspends Review of All Regular Prevailing Wage Requests by Shifting All Resources

As of a few days ago, DOL has confirmed that they have shifted all of its relevant Office of Foreign Labor Certification (OFLC) resources towards complying with the June 15 court order. By making this decision, in effect, DOL has temporarily suspended the processing of all non-court mandated prevailing wage determinations. While it is possible that DOL would switch some of its resources back to processing regular processing prevailing wage determinations, it is possible that no prevailing wage requests would be processed until DOL clears the H-2B backlog.

A federal rule dated as of August 1, 2011 states that DOL should be able to process all H-2B prevailing wages by October 1, 2011. DOL has also indicated that they plan on completing all 4,000 H-2B prevailing wages by August 31, 2011. As a result, we should expect (somewhat) normal processing of prevailing wage determinations to return during the month of September.

PERM and H-1B Filings to be Affected and Possibly Delayed

As a result of the prevailing wage suspension, many PERM and H-1B cases are put on an temporary, but highly undesirable, hold. Even if DOL returns to normal prevailing wage processing as soon as September 1, there would be a significant backlog of pending regular prevailing wage requests. Many foreign nationals must file their PERM/H-1B applications in order to be able to fit within AC21 guidelines, expiring recruitment of other urgent reasons. We hope that DOL would be able to designate and allow some prevailing wages to be processed in order to allow foreign nationals with deadlines to make timely filings.

Additionally, and assuming that DOL returns to normal processing in September, there would be a high number of prevailing wage determinations issued which, in a few weeks or a couple of months, would result in a higher than normal volume of PERM filings. As a result, we expect that PERM processing times to increase over the next 4-6 months.

We would continue monitoring this situation and provide updates as they become available. Please feel free to subscribe to our weekly newsletter or contact us if our office can be of any assistance.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Wed, 27 Jul 2011 16:15:53 +0000

The Office of Foreign Labor Certification (OFLC) at the Department of Labor (DOL) has released selected statistics about the processing of PERM labor certification cases. The statistics and the numbers cover the first eight months of Fiscal Year 2011 – between October 2010 and May 2011.

Total Applications Received

It is interesting to note that for the relevant period, there were 45,000 PERM applications filed. According to DOL, the number of FY2011 filings represents a significant 63% increase over PERM filings compared to FY2010. The vast majority, 43,179 were filed electronically and 1,905 were mailed-in.

Education Level

DOL provides a breakdown of the education level of active PERM cases. Since DOL counts only active, under review cases, the baseline number is a total of 22,200 PERM cases. Out of these active cases, 37% require a bachelor’s degree, 37% require a master’s degree, 4% require a doctorate degree, with the balance distributed among Associate degree, High School, Other or no degree requirement (yes, it is possible to file a PERM for such cases, and they represent 12% of the active PERM cases).

Processing Status

DOL also provides a breakdown of the processing status of active PERM cases. As of May 31, 2011, these cases were 22,200 and 44% of them were in Analyst Review stage, 29% were in Audit, 24% were in Appeal, and 3% were in Sponsorship/Backlog Elimination stage.

Current PERM Processing Times

The processing times, as reported by DOL as of June 27, 2011, are as follows:

Regular processing: April 2011. DOL is processing PERM applications with priority dates of April of 2011. This suggests that there is a slight delay in the regular PERM processing. 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: November 2010. DOL is processing PERM audits which have a priority date of November 2010. This is a very notable improvement in this category in comparison to prior months. In comparison with the April 2011 PERM report, this category’s processing time has advanced (improved) by a net of eleven (11) months from December 2009 to November 2010. Accordingly, audited PERM applications are processed approximately 7 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: November 2008. DOL is processing PERM appeals which have a priority date of November 2008. There is 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

We continue to praise DOL as it has done a terrific job in eliminating the PERM backlog to 3-4 months and, more significantly, the audit backlog from 20+ months to 7 months. We also note that the DOL OFLC statistics report suggests a significant (63%) increase in new PERM filings. As a result, we expect that regular PERM processing times increase over the coming months.

U.S. immigration lawyers serving individual and corporate clients in the Washington, D.C. metropolitan area and nationwide.

admin — Thu, 28 Apr 2011 14:16:26 +0000

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of April 25, 2011. Most notable is the slight increase (or delay) in the processing time for regular PERM applications — up to two (2) months. Also, it is important to note the significant (9 months net) improvement in the PERM audit processing times. The processing times, as reported by DOL, are as follows:

Regular processing: March 2011. DOL is processing PERM applications with priority dates in March of 2011. This suggests that there is a slight delay in the regular PERM processing (compared to one (1) months in February). Accordingly, regular PERM processing times should be between one and two months. Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
Audited applications: December 2009. DOL is processing PERM audits which have a priority date of December 2009. This is a notable improvement in this category in comparison to prior months. In comparison with the February 2011 PERM report, this category’s processing time has advanced (improved) by a net of nine (9) months from January 2009 to December 2009. Accordingly, audited PERM applications are processed approximately 17 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 2008. DOL is processing PERM appeals which have a priority date of September 2008. There is some slight improvement 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

We continue to praise DOL as it has done a terrific job in eliminating the PERM backlog from 9-10 months an year ago to as little as a few weeks today. We also welcome the significant improvement in PERM audit processing times. At the same time, however, it is disappointing to see that the appealed queues move very slowly forward or remain unchanged. We hope that DOL, after being able to consistently review regular PERM cases on a 2-8 weeks timeline, would turn its attention to appeals and audits and decrease the processing times for those cases as well.