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Archive for the ‘PERM Labor’ Category

November 2016 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

October 18, 2016 Leave a comment

U.S. Citizenship and Immigration Services recently stated that for the month of November, it will use the State Dept.’s  November Visa Bulletin DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS for employment-based first through fourth preference category, and for employment-based fifth preference category, the FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES to be used.  Hereunder, State Dept.’s November Filing Dates Chart is provided:

Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO  PHILIPPINES 
1st C C C C C
2nd C 01MAR13 22APR09 C C
3rd C 01MAY14 01JUL05 C 01SEP13
Other Workers C 01AUG09 01JUL05 C 01SEP13
4th C C C C C
Certain Religious Workers C C C C C
5th
Non-Regional
Center
(C5 and T5)
C 15JUN14 C C C
5th
Regional
Center
(I5 and R5)
C 15JUN14 C C C

June 2014 Visa Bulletin – Employment-Based Immigrant Visa Numbers

May 21, 2014 Leave a comment
Employment- Based All Chargeability Areas Except Those Listed China – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 22MAY09 15NOV04 C C
3rd 01APR11 01OCT06 15OCT03 01APR11 01JAN08
Other Workers 01APR11 01JAN03 15OCT03 01APR11 01JAN08
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted
Employment
Areas/
Regional Centers
and Pilot Programs
C C C C C

PERM Fiscal Year 2012 Statistics

September 28, 2012 Leave a comment

Please click on the link below for the file containing statistics.  A few observations:

–Computer/math occupations accounted for 54% of all PERM filings in FY2012.  Information Technology industry itself accounted for 44% of all PERM filings.

–California, New York, New Jersey, and Texas accounted for precisely 50% all PERM filings in the U.S. in FY2012.

–82% of the PERM beneficiaries were in H-1B visa status.

–India accounted for 56% of all PERM filings in FY2012.

–EB-2 cases were 52% of all filings.

–PERM denial rate was just over 15%

–Withdrawn cases accounted for little over 6%

–Audits at 45%; supervised recruitment at 4%, and appeals (from denials) at 3%

PERM Statistics FY2012

EB-2 Eligibility: A Simple Two-Prong Test

July 24, 2011 Leave a comment

Given the severe backlog in EB-3 immigrant visa numbers, especially for applicants from India, more individuals are considering the EB-2 route.  Our office receives the EB-2 inquiries almost everyday.  Not all cases qualify for EB-2.  When we review a case and inform the employer and the employee that a given case is not EB-2 eligible, what we get a typical response “I have x years of experience, why are you saying that I am not qualified?”.  A simple two-prong test would help understand the eligibility criteria.

Step 1: The minimum requirements for the position in question at the employer require a) an individual holding an advanced degree or its foreign equivalent in the specialty; or b) an individual holding a Bachelor’s degree or foreign equivalent and at least five (5) years of progressive (increasing in job responsibilities) post-Bachelor’s experience in the specialty.

Step 2: The foreign national being sought to fill the position in Step 1 must in fact meet the minimum requirements stipulated by the employer.

For instance, even if an individual holds a Doctorate degree in Computer Science from a top engineering school and has 10 years experience working for Fortune 100 Companies in key positions making $250,000/year, he or she might still not qualify for EB-2 if only the position he or she tries to fill requires someone with a Bachelor’s degree only.

Besides the above, there are other critical issues including, but not limited to, whether the individual has a combination of two degrees which might not equate to U.S. Master’s equivalent; employer’s ability to pay the wages for the position; minimum requirements for the position as stipulated by Department of Labor; minimum requirements stipulated by the employer for other same or similar positions currently and in the past within the organization; and whether the job requirements are tailored to qualify the foreign national only.

A careful, thorough review by an immigration attorney determines not just whether a person has a Masters or Bachelor’s + 5 yrs experience, but a holistic view of the entire case presently and an ability to foresee any potential issues in the future.  A well strategized case is not only good for the employer and the employee but is also appreciated by the two agencies dealing with the process, namely Dept. of Labor and U.S. Citizenship and Immigration Services.

Green Card Ability to Pay Issue Getting Nastier By the Day

April 22, 2011 Leave a comment

It used to be case that ability to pay was an issue at the U.S. Citizenship and Immigration Services at the time of filing of Form I-140 immigrant visa petition in an employment-based green card case.  The Department of Labor has always had the right to look into an employer’s ability to pay in reviewing the foreign labor certification applications a.k.a. PERM labor applications.

In response to a denial of labor certification application by the Department of Labor’s Certifying Officer in a recent case, the employer filed an appeal with Board of Alien Labor Certification Appeals (“BALCA”).  Upon appeal, BALCA upheld the denial by the Certifying Officer stating that the employer’s ability to pay the wages mentioned in a PERM labor application is not met where such ability to pay has been established by consultant-employees generating the revenues/funds.  This is an extremely narrow interpretation of law applied by BALCA and means that a great number of consulting companies sponsoring PERM labor applications on behalf of their consultant-employees are likely to see unfavorable decisions from the Department of Labor/BALCA.

Ability to pay must be met from the date of filing of the labor application up until the green card case has been fully adjudicated.  The best way to show ability to pay the wage mentioned on the PERM labor application is to actually pay the said wage each year through the full adjudication of a green card case.  There are other ways to demonstrate ability to pay and a careful analysis by a legal professional is important prior to initiating a green card case.

Checking the Status of Labor Condition Application (LCA) or Prevailing Wage Determination (PWD)

November 5, 2010 Leave a comment

The U.S. Dept. of Labor now has an online portal with a feature which enables an individual with a valid case number for a Labor Condition Application (LCA) or a Prevailing Wage Determination (PWD) application to check the status.  The hyperlink is http://icert.doleta.gov/index.cfm (box on the right hand side)

At this time, the Dept. of Labor (DOL) does NOT offer an online case status feature for pending PERM labor certification applications.  Only sponsoring employers or attorneys that filed the PERM labor application will be able to check the status after logging in to the DOL online portal.

Prevailing Wage Determinations Take About Two Months

May 11, 2010 Leave a comment

Ever since the Prevailing Wage Determination (PWD) system was centralized in early 2010, the U.S. Department of Labor has been taking about two months to issue PWDs.  PWDs are generally sought in the context of proceeding with employment-based green cards, H-1B, H-1B1, H-2B, and E-3 visa categories.  Although employers planning to file employment-based green cards can proceed with recruitment prior to obtaining a PWD, it is not prudent to do so.  One reason to abstain from such aggressive approach is if the PWD wage as determined by the Department of Labor ends up higher than the wage employer used to undertake recruitment efforts, such recruitment will need to be repeated with the new wage.  Thus, much earlier planning and filing of PWD, anticipating a two-month processing time is highly recommended.  As always, consult with your immigration attorney in properly planning your case. 

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