Changes in PERM Processing Times and Other Factors Surrounding PERM Filing

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Employers and foreign workers one time learned earlier this year that the PERM applications had been certified in a short period of time this year, in one week or mostly in one month for the "clean" cases. However, the April 2011 report of processing times reflects somewhat slow-down of the processing times, albeit minor. Careful readers must have noticed the difference in report cut dates between March and April 2011.

The cut off date in March report was March 9, while the cut off date in April 2011 was April 25. The clean cut case processing time in March report was February 2011 and the same for April was March 2011. However, because of the cut-off date difference, it appears that there is practically about two weeks or so delays as of April 2011 as opposed to March 2011. Information indicates that employers start receiving clean-cut case certifications which were filed early March or February 2011.

We have no information as to any potential further delays in processing times, but the employers should be aware of the foregoing record in planning for filing of PERM applications. AILA reports that approximately 50% of cases are in Supervised Recruitment & Audit track, approximately 20% of cases are Appeals track, and only approximately 30% of cases in Analyst Review track, clearly reflecting changing environment of PERM processing. The report also indicates that denial rate has been substantially increased. This changed environment is caused by the OFLC reenforcement of integrity (fraud) investigations and this is likely to continue.

The DOL SOC/OES wage data is expected to change as of July 2011. Considering the recent trend of inflation rate, the wage date for 2011 which will be released and controlling for the prevailing wage determination is likely to reflect upward changes in the wage rates. Currently, OFLC's ETA 9141 prevailing wage determination takes "three weeks," with a valid period of 90 days. It means that unless ETA 9141 is filed at least three weeks or earlier of July 1, 2011, the employers will be subject to potentially higher prevailing wage determination for the labor certification. Prudent employers may thus take care of the prevailing wage determination request by May at the latest. Just a reminder. http://www.greencardapply.com/news/news11/news11_0503.htm

The H-1B and L-1 Visa Application Fees - Training and Anti-Fraud

http://www.greencardapply.com/news/news11/news11_0502.htm

The American Competitiveness and Workforce Improvement Act (ACWIA) established what is commonly referred to as the "training fee." This fee is currently set at a level of $1500 for companies with more than 25 employees; the fee is reduced to $750 for companies with 25 employees or fewer. This payment must accompany most H1B petitions.

The amount collected, totaling more than $2.3 billion between fiscal years 2000 and 2011, is used for funding training and scholarships for U.S. workers. The report cites a statistic from the National Science Foundation (NSF) that a portion of these funds has been used for 58,000 college scholarships for U.S. students in the fields of science and math.

The L-1 and H1B Visa Reform Act, established a $500 fee to be utilized for fraud prevention and detection. This fee must be paid with the initial H1B or L-1 petition filed by an employer. The report states that $772 million has been generated since the initiation of this fee. The funds are utilized by the U.S. Department of State (DOS), U.S. Department of Labor (DOL), and Department of Homeland Security (DHS) in fraud detection initiatives.

As there are ongoing hearings and debates in Congress over the H1B program, the fees charged to employers, measured in billions, should be given some weight. These fees are used for purposes far beyond simply covering government costs in processing H1B petitions. U.S. workers benefit by training and scholarships. A wide variety of fraud initiatives began and grew once the $500 anti-fraud fee funds were available for supporting these efforts.

These heavy costs to U.S. employers further illustrate the genuine need for the highly-skilled, professional H1B workers, as their hiring comes with benefits for the U.S. economy and the U.S. population. http://www.greencardapply.com/news/news11/news11_0502.htm

What Kind of Checks Will Be Included in the I-485 Background Security Check?

Question:

My EB1A application has been approved. Thank you very much for the help of your Do It Yourself package of EB1A. Now my I-485 application is pending. I called the USCIS Customer Service Help Line for my case progress, and was told that it is in the process of "background security check". What kind of checks will be included in this background security check?

Answer:

To ensure that immigration benefits are given only to eligible applicants, USCIS adopted background security check procedures that address a wide range of possible risk factors. Different kinds of applications undergo different levels of scrutiny. USCIS normally uses the following three background check mechanisms but maintains the authority to conduct other background investigations as necessary:

1) The Interagency Border Inspection System (IBIS) Name Check— IBIS is a multi-agency effort with a central system that combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues and other law enforcement concerns.

2) FBI Fingerprint Check—FBI fingerprint checks are conducted for many applications. The FBI fingerprint check provides information relating to criminal background within the United States. Generally, the FBI forwards responses to USCIS within 24-48 hours. If there is a record match, the FBI forwards an electronic copy of the criminal history (RAP sheet) to USCIS.

3) FBI Name Checks—FBI name checks are also required for many applications. The FBI name check is totally different from the FBI fingerprint check. The records maintained in the FBI name check process consist of administrative, applicant, criminal, personnel and other files compiled by law enforcement. Initial responses to this check generally take about two weeks. In about 80 percent of the cases, no match is found. http://www.greencardapply.com/question/question11/question11_0214.htm

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H-1B Fees for U.S. Worker Training and Fraud Prevention

Question:

As a small company with 15 employees, we plan to hire a recent college graduate with our sponsorship for H-1B visa. What are the fees we need to pay for the H-1B application?

Answer:

The American Competitiveness and Workforce Improvement Act (ACWIA) established what is commonly referred to as the "training fee." This fee is currently set at a level of $1500 for companies with more than 25 employees; the fee is reduced to $750 for companies with 25 employees or fewer. This payment must accompany with the H-1B petition. The amount collected is used for funding training and scholarships for U.S. workers.

Also, the L-1 and H-1B Visa Reform Act established a $500 fee to be utilized for fraud prevention and detection. This fee must be paid with the initial H-1B or L-1 petition filed by an employer. http://www.greencardapply.com/question/question11/question11_0420.htm

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The Criteria Used by USCIS for EB1 Prizes or Awards with National or International Significance

The Criteria Used by USCIS for EB1 Prizes or Awards with National or International Significance

Question:

As a researcher at a U.S. national research lab, I am preparing my Green Card application in the EB1 category. I am considering to claim the "prizes or awards" criterion, but not sure the if my awards, mostly graduate/post-doc level awards, can be considered by USCIS officers for national or international significance. Do you know what are the criteria used by USCIS for this issue?

Answer:

To determine whether the alien applicant has received lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor, the relevant USCIS considerations regarding whether the basis for granting the prizes or awards was excellence in the field include, but are not limited to:

1) The criteria used to grant the awards or prizes;
The national or international significance of the awards or prizes in the field; and

2) The number of awardees or prize recipients as well as any limitations on competitors. An award limited to competitors from a single institution, for example, may have little national or international significance.

http://www.greencardapply.com/question/question11/question11_0404.htm
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NIW Petition - Addressing all the NYSDOT Case's Prongs Separately

Question:

I recently got a Request For Evidence from USCIS. They asked all questions I provided before in the initial petition cover letter and supporting documents. I am not sure if they lost my NIW package or some documents. Please see my attached RFE notice and let me now how I could reply it. Thank you very much!

Answer:

It has happened to many people that USCIS lost the supporting documents, especially when the I-140 was e-filed. So, there is a small chance that USCIS lost your package. However, we do see that USCIS RFE says: "The petitioner appears to be part of a talented team doing research that could be of national interest. The team is just one of many that are working on the same type of research- which indicates USCIS know your qualifications."

In your cover letter, you should address all the prongs for NIW by quoting the relevant laws and addressing each of them separately, which means the following prongs issued in the NYSDOT case:

1) it must be shown that the alien seeks employment in an area of substantial intrinsic merit;

2) it must be shown that the proposed benefit will be national in scope;

3) the petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required.

It has to be shown that aliens ability to serve national interest is significantly above than available U.S. worker with same minimal qualifications, and it must be shown that the alien has a past record of contributions to areas of national interest justifying future benefit to national interest.

When we go through the rest of your RFE, it seems that you haven't addressed each of the prongs separately and established how you satisfy them.
http://www.greencardapply.com/question/question11/question11_0415.htm

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USCIS Record of Approvals and Denials of EB-1A and and EB-1B

USCIS Record of Approvals and Denials of EB-1A and and EB-1B

USCIS Record of Approvals and Denials of EB-1A (EB1-Extraordinary Ability) and EB-1B (EB1-Outstanding Researcher or Professor) I-140 Petitions. This statistics reflect that EB-1A and EB-1B approval rates had been higher than 50% in general from FY 2005 through FY 2010. The approval numbers have steadily increased more or less.

Approval and Denial Statistics for I-140, Immigrant Petition for Alien Workers
1) Table A provides data on the approval and denial for the E-11 classification (Alien of Extraordinary Ability) of the Form I-140, Immigrant Petition for Alien Workers.

Fiscal Year: 2010
Approvals: 3,200
Denials: 1,998
Approval Rate: 62%
Denial Rate: 38%

2) Table B provides data on the approval and denial for the E-12 classification (Outstanding Professor or Researcher) of the Form I-140, Immigrant Petition for Alien Workers.

Fiscal Year: 2010
Approvals: 3,140
Denials: 306
Approval Rate: 91%
Denial Rate: 9%

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