Recently in Labor Certifications (PERM) Category

April 18, 2012

H-1B Quota - New Numbers Show a Slight Slowing of Usage

hourglass and white figure.jpgThe H-1B quota count came out again yesterday. USCIS released the following quota numbers:

  • Bachelor's degree quota: approximately 20,600 petitions received

  • Advanced degree quota: approximately 9,700 petitions received
  • This tells us that those petitioners and employees who had a job in hand by April 1, did not delay in getting their petitions submitted once the filing period started. However, this may be good news for those who are still job searching, preparing petitions, or negotiating their H-1b petitions with employers. Usage seems to be slowing, but a word of caution that the numbers can surge upwards again once new graduates firm up job offers come May and June. Best of luck to those making applications. Call the attorneys at Law Offices of J Craig Fong for your consultation on an H-1B petition. ---ecf

    April 13, 2012

    Retrogression for EB-2 India and China and Age Outs: May 2012 Visa Bulletin Report

    Retrogression has hit the EB-2 preference categories for India and China. USDOS released the May 2012 visa bulletin showing EB-2 priority dates of August 15, 2007 for both countries. The EB-3 priority dates have moved forward about one month, with the exception of India which forward about a week to September 8, 2002. Families with dependents who will age out at age 21 should call the attorneys at Law Offices of J Craig Fong to talk about options now. ---ecf
    Visa Bultn May 2012 EMT.png

    The family-based visa bulletin shows slow movement as well:
    Visa Bultn May 2012 FAM.png

    April 3, 2012

    F-1 Cap Gap and H-1B Issues

    help button.jpgF-1 cap gap issues cause a lot of confusion, but here is a quick guide to help you all you need are clear answers. I posted a similar blog entry last year. The full guidance from USCIS can be found here:

  • Can an F-1 student file an H-1B petition during the so-called grace period or 60 days after their I-20 or OPT expires? Yes.

  • Do the cap gap protections extend to someone who requested consular processing on their I-129? No.

  • Does the 90 day limitation on unemployment still apply during an OPT extension granted from a cap gap application? Yes.

  • Can an F-1 student travel while on the automatic cap gap employment extension and return as an F-1 student? No.
  • While these quick tips are meant to provide a few quick answers, it's always best to have your situation analyzed by the business immigration attorneys at Law Offices of J Craig Fong. Our attorneys have the experience you need, and are often requested by llocal and national bar associations to provide training courses to other attorneys. Call today for a free consultation. ---ecf

    March 23, 2012

    EB-2 China and India Update: Predicted Regression Date of Aug. 15, 2007

    backwards moving clock.jpgThis is just in from AILA. It has been reported that in the May 2012 visa bulletin, the USDOS will retrogress the priority dates for China and India EB-2 to August 15, 2007. The April 2012 priority dates are at May 1, 2010. It's still too early to know how long the regression will last, or when there will might be forward movement again this fiscal year. USDOS did report that demand for this preference category from China and India remains very high. Cases will still be "preadjudicated" and held by Dept. of State under their "pending files" in order to be ready when visa numbers can be used for cases filed after May 1, 2010. ---ecf

    March 21, 2012

    EB-2 Retrogression on the Horizon

    U Turn arrow.jpgBad news for those watching in the China and India EB-2 preference category priority dates. It is reported on March 16 that the US Department of State will likely retrogress the EB-2 priority dates to around August 2007 in the May or June 2012 visa bulletin. The April 2012 visa bulletin priority dates for China and India are at May 1, 2010. All other countries are current.

    The reason given for the anticipated retrogression is that USDOS anticipates there will be no "spill down" from any unused EB-1 numbers, meaning all the allocated immigrant visa numbers for Fiscal Year 2012 will likely be used this year in the employment first preference category. This is also an important note for EB-1 applicants: if you are planning an employment first preference case, you might want to get that case in earlier than later. Call the business immigration attorneys at the Law Offices of J Craig Fong to plan your employment cases now. ---ecf

    March 19, 2012

    PERM Processing Times

    forest for the trees2.jpgThe days of PERM processing within a week or two are long gone, but the business immigration attorneys at the Law Offices of J Craig Fong, have seen a decrease in time for adjudications at US Dept of Labor.

    Although processing times still vary, we have recently seen certifications within 2 months of filing. The icert portal reports that analyst reviews are hovering around the submission date of November 2011. That's about 4 months from submission to getting an initial response.

    In the world of audits, Department of Labor reports that they are working on cases originally submitted around July 2011. As many had expected, supervised recruitment is still an issue. In a report summarizing PERM cases filed between October 1, 2011 to March 5, 2012, the Office of Foreign Labor Certification (OFLC) confirmed 26,100 active cases as of March 5 with only 4% of cases undergoing supervised recruitment. While it's still early in the fiscal year, we also know it takes time for a case to proceed from submission to audit, it was notable that a full 26% are in audit review. We may expect an increase in supervised recruitment requests.

    Understanding how to protect your PERM case from audit or denial is tricky. There are no guarantees with this system and it is fraught with risk. One must see the forest for the trees. There are very specific timeframes and requirements that have to be observed with precision, but your attorney must help you keep sight of the big picture, too. Many people contact me after a labor certification is approved but with a denied I-140 in hand. While you can always start over if you've extra time left on your current nonimmigrant status, it's a given that processing times are still significant. This makes it as important as ever to know that your labor certification application is in the hands of someone with experience, someone who can get the job done the first time. Call The Law Offices of J Craig Fong for a consultation to discuss your PERM case to get a real view of what you might be dealing with in PERM. ---ecf

    March 13, 2012

    Preparing H-1B Petitions With Multiple Worksites

    Vector arrows.jpgH-1B news. April 1, is just around the corner. The so-called "H-1B season" is upon us with preparations in high gear for early filings. While I won't give predictions or insight into how long this quota will last, the important thing is to prepare your case well and do it as early as possible.

    This blog entry will focus on a 2010 H-1B USCIS memo that was updated on March 12, 2012 discussing "employer-employee" relationships. Simply put, this memo gives guidance on how to prove up cases involving independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. Having represented a range of employers with H-1B workers who travel about for their jobs in technology, accounting and finance, and business consulting, the attorneys at the Law Offices of J Craig Fong know the challenges facing employers in initial H-1B petitions, updating LCA requirements, and keeping employees in status throughout their H-1B stay, wherever they may be performing services. Such employers must know that they have additional responsibilities in preparing itineraries and documenting prevailing wages in different geographic areas.

    If you or your employer have a non-traditional employment arrangement, such as one involving different worksites, contact the attorneys at Law Offices of J Craig Fong for a free initial consultation. ---ecf

    February 7, 2012

    H-4 Work Authorization and Other Reforms to Attract and Retain Highly Skilled Workers

    Magnet with Key.jpg
    Last week, Department of Homeland Security announced several proposed reforms to "attract and retain highly skilled workers." These reforms include employment authorization of certain H-4 spouses and other concrete incentives.

    DHS released a press release describing these administrative reforms, which would impact the benefits and the adjudications process in several different ways, ultimately benefiting employers, universities, scholars and workers (and their spouses):

  • Allowing H-4 dependent spouses to apply for EADs (employment authorization documents) if the principal H-1B spouse has extended their period of stay under AC 21 Section 104(c) or 106(c)
  • Expanding STEM OPT extensions to F-1s whose underlying or previous degrees were STEM related, even if their current course of study is not a STEM major
  • Expansion of the list of eligible STEM majors
  • Allowing F-1 spouses to engage in part-time studies other than vocational or recreational classes
  • Giving universities and colleges more flexibility to increase the number of DSOs or Designated Student Officers at universities and colleges to meet both the administrative and guidance needs of incoming students
  • Increase the type of evidence that Outstanding Professors and Researchers can provide in order to establish eligibility to include "comparable evidence"
  • Allow for the 240-day continued employment authorization of E-3s and H-1B1s upon timely extension, which is already the case for H-1s and L-1s

    At present, the proposed reform to allow EADs for H-4 dependent spouses is in rulemaking, though at a very early stage. We should be prepared to hear updates on the process of each of these administrative reforms, though we have been notified that changes will take time. It is still encouraging in that we have some concrete information on how such reform will impact the highly skilled workers and their spouses who are waiting in the priority date queues or just beginning to prepare for H-1Bs, labor certifications, national interest waivers, extraordinary ability workers and outstanding researcher or professor petitions, etc.

    If you are interested in learning more about these administrative reforms, be sure to subscribe to our blog for updates. If you have a case that you'd like for us to assess, call the business immigration law attorneys at the Law Offices of J Craig Fong. ---ecf

  • January 23, 2012

    Employment Based Visa Numbers the Outlook for Fiscal Year 2012

    2012 calendar.jpgFiscal year 2012 began on October 1, 2011 and as expected, we saw some movement in the visa bulletin. Here is a brief summary of what the US Visa Office reports seeing in terms of usage in the first 3 months of the FY 2012.

    Employment-based usage has been quite slow, but we can still expect to see some advances in the EB bulletin. There are still some EB-2 cases from 2007 in the USCIS pipeline, so we will probably see EB-2 hover around that date until cases are cleared out before forward movement is consistent.

    There has been a severe slowdown in the usage of EB-1 numbers, with some speculation that recent USCIS interpretation and clarification with regard to the standard for extraordinary ability cases has created a stricter standard and perhaps has dissuaded some applicants from filing cases.

    The immigration attorneys at the Law Offices of J Craig Fong have been practicing employment-based immigration law for nearly than 50 years in total. While the early FY 2012 numbers reflect some slowdown in usage either due to a sluggish economy or stricter adjudications by USCIS, each case is fact-specific so if you have questions regarding an employment-based immigration case for yourself or someone you want to hire, give us a call for a free consultation. We can assess your situation in detail to help you chart a path through 2012! ---ecf

    October 8, 2011

    Labor Certification, Prevailing Wages, and H-1B Timing Issues

    hanging onto time.jpgSeptember 30 marks the end of fiscal year for 2011. I wanted to review some statistics regarding labor certification information by the US Dept. of Labor which shows some interesting statistics about labor certification processing times and audits between October 1, 2010 and May 31, 2011.

    Labor certification audits are still taking about a year for review and out of approximately 22,000 of the cases that were pending as of May 31, 2011, only 44% of those case were pending initial analyst reviews. The rest of the 56% were either in audit, appeal, or at the sponsorship verification stage. Since DOL reported a 63% increase in applications compared to 2010, we can probably expect that audit queue to increase.

    As many of you may have noticed, prevailing wage requests are taking more than 3 months for a determination. Those who might need to file labor certifications before the end of the year in order to preserve the ability to extend an H-1B might begin thinking about leaving the US and recapturing H-1B time later if you are unable to file the initial labor certification 365 days before your anticipated H-1B expiration date. While admittedly, this isn't the ideal scenario, it stops the H-1B clock, even if momentarily... so that you can plan for a timely extension when you're eligible. Call the business immigration attorneys at the Law Offices of J Craig Fong if you'd like an assessment of your labor certification or H-1B case, don't wait another second! --ecf

    October 6, 2011

    The World Mourns Steve Jobs

    Green apple standing out.jpgToday the world mourns Steve Jobs. Steve Jobs was the creator and visionary at Apple, Inc. but he is remembered as one of the world's greatest business leaders, ranking up there with the likes of Ford and Rockefeller. Steve Jobs was credited for bringing technology and it's benefits to the every day lives of every day people. The attorneys at Law Offices of J Craig Fong want to thank Steve Jobs for changing how we think about technology, for inspiring us to think creatively in what we do as immigration attorneys.

    Law Offices of J Craig Fong is proud to run our office on Apple technology. We love our Apple computers, iPhones and iPads. But more importantly, the immigration attorneys at the Law Offices of J Craig Fong have also embraced the entrepreneurial spirit and determination which is best exemplified by Steve Job's own words:

    Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do.

    As immigration lawyers, we know that the law allows families to reunify, it gives foreign workers and entrepreneurs a chance to realize their dreams. What we do at the Law Offices of J Craig Fong gives people a chance in a lifetime to make a change for the better. Many, many of our clients come to us after other immigration attorneys have turned their cases away hearing their employers were too small, too new to sponsor an H-1b or that a new company L-1 is just impossible these days. Or perhaps their family members were facing removal or in desperate need of an immigration waiver but that odds were against them so that it wasn't worth trying. at the Law Offices of J Craig Fong, we don't provide formulaic solutions to challenges. Steve Jobs didn't do that and neither do we. Challenging cases require exacting solutions. We work on each case with the individualized attention that each case deserves and we have the years of experience to know what works and what does not. When other immigration attorneys won't make the extra effort to take on cases that are outside the norm, we do - because this is what makes our work meaningful, and this is what inspires us to create great work and to make a difference, a world of difference to the individuals who didn't settle and tried anyhow. --ecf

    September 16, 2011

    Employment-based Visas Exhausted for FY 2011

    Wooden mannequins waiting in line.jpgJust when you thought you were close to the front of the line, US Department of State announced yesterday that no further employment based preference cases (the so called EB cases) can be allotted toward the fiscal year 2011 quota.

    Translation: No more employment based approvals of I-485s for now. Remember that October 1, 2011 will mark the first day of the USCIS Fiscal Year 2012, so EB greencard cases will resume in October.

    USCIS has been directed to continue adjudicating EB cases but those cases will be placed "on hold" until October 3 when all cases which are "pending demand" (for I-485 approval) between September 15 - September 30, 2011 can receive final adjudication.

    What this means is that anyone with a pending I-485 based on an employment preference case will have to wait until October 2011 to see a final approval of their pending and ripe adjustment of status. For updates to the visa bulletin, check back in October or call the business immigration attorneys at the Law Offices of J Craig Fong for a free initial consultation. ---ecf

    September 10, 2011

    H-1B Quota Numbers September 9, 2011

    In the last month, usage of H-1B numbers have continued to crawl upwards:

  • The regular H-1B cap has seen an increase from 25,300 petitions received to 32,200 as of September 9, 2011

  • The advanced degree cap has moved toward the 20,000 cap from 14,700 petitions received to 16,700 received as of September 9, 2011

  • With California unemployment rates hitting 12.1%, it looks like the H1B program may remain open for the long-term, ultimately giving H-1B job seekers additional time to find offers of employment. If you are an F-1 student on OPT seeking an appropriate H-1B job offer, please remember that maintaining status is crucial unless you are able (and willing) to consular process. ---ecf

    April 8, 2011

    H-1B Quota - 2012 Cap

    So far, the USCIS has announced that it received 5,900 H-1B applications for the normal quota and an additional 4,500 for the advanced degree quota. These numbers were released yesterday, April 7, 2011.

    In years past, many remember that the H-1B quota was exhausted as early as the first day of applications. Last year, the H-1B cap was not reached until January the following year. I would anticipate that with the economy still rebounding, the H-1B quota will last a significant amount of time. This will also ensure that everyone who can find a job offer this year will have a chance to make an H-1B application. Please contact the business immigration attorneys at Law Offices of J Craig Fong for a free consultation if you are interested in applying for an H-1B this year! ---ecf

    April 4, 2011

    Chinese Companies Suspected of Fraud

    It's H-1B season and the business immigration attorneys at the Law Offices of J Craig Fong are busy once again fielding phone calls and inquiries regarding employment-based visas, including those of L-1 and new company visas. In the past few years, the USCIS and US Department of Labor have suspected newer and small companies of fraud, especially within the immigration system. New procedures and increased scrutiny of employment-based cases have made H-1B petitions and H-1B visas especially more difficult to attain.

    Handshake.pngToday's Wall Street Journal ran a story about the very disturbing trend revealed by the Securities and Exchange Commission that small private companies are merging with public shell (dormant) companies instead of going through more rigorous methods of becoming public, avoiding initial public offerings. SEC Commissioner, Luis Aguilar announced that since January 2007, 600 of such "backdoor registrations" occurred and most notably, more than 150 of these occurred in and around China.

    It's no secret that the USCIS, as part of the US Department of Homeland Security (USDHS) is engaged in "national security, fraud detection and prevention." The DHS now has an unit attached to it which investigates corporations suspected of defrauding the government specifically through the H-1B program and other visa categories. This has made adjudications of all H-1B applications much more difficult and I believe we will see strict review of all H-1B and work related applications. ---ecf