Family 2A – World numbers, China, India, and the Philippines have jumped six weeks to 22 July 2009; Mexico advanced seven weeks to 1 July 09; Philippines advanced six weeks to 22 July 09

Family 2B – World numbers, China, India advanced four weeks to 15 November 03; Mexico remains unchanged to 1 December 92; Philippines advanced five weeks to 08 December 01.

Family 3rd – World numbers, China, India jumped four weeks to 01 January 2002; 1 week advance for Mexico to 8 January 1993; Philippines remains unchanged to 22 July 92.

Family 4th – World numbers, China, India jumped four weeks to 8 October 2000; Mexico advanced one week to 22 May 96; Philippines jumped seven weeks to 22 December 1988.

Employment 1st – still current in all categories.

Employment 2nd – World numbers, Mexico, Philippines still current, China and India advanced again by four months to 1 May 2010.

Employment 3rd – World numbers, Mexico, Philippines advanced three weeks to 15 March 06; China jumped four weeks to 1 January 05; India moved one week to 22 August 02.

Employment 3rd Other Workers – World numbers, Mexico, Philippines jumped three weeks to 15 March 06; China remains unchanged to 22 April 03; one week advance for India to 22 August 02.

Employment 4th – still current in all categories.

Employment 5th – still current in all categories.

Family 2A – World numbers, China, India, and the Philippines have jumped six weeks to 22 July 2009; Mexico advanced seven weeks to 1 July 09; Philippines advanced six weeks to 22 July 09

Family 2B – World numbers, China, India advanced four weeks to 15 November 03; Mexico remains unchanged to 1 December 92; Philippines advanced five weeks to 08 December 01.

Family 3rd – World numbers, China, India jumped four weeks to 01 January 2002; 1 week advance for Mexico to 8 January 1993; Philippines remains unchanged to 22 July 92.

Family 4th – World numbers, China, India jumped four weeks to 8 October 2000; Mexico advanced one week to 22 May 96; Philippines jumped seven weeks to 22 December 1988.

Employment 1st – still current in all categories.

Employment 2nd – World numbers, Mexico, Philippines still current, China and India advanced again by four months to 1 May 2010.

Employment 3rd – World numbers, Mexico, Philippines advanced three weeks to 15 March 06; China jumped four weeks to 1 January 05; India moved one week to 22 August 02.

Employment 3rd Other Workers – World numbers, Mexico, Philippines jumped three weeks to 15 March 06; China remains unchanged to 22 April 03; one week advance for India to 22 August 02.

Employment 4th – still current in all categories.

Employment 5th – still current in all categories.

Family 2A – World numbers, China, India, and the Philippines have jumped six weeks to 8 June 09; Mexico advanced six weeks to 8 May 09; Philippines advanced six weeks to 8 June 09

Family 2B - World numbers, China, India advanced 5 weeks to 15 October 03; Mexico remains unchanged to 1 December 92; Philippines advanced eight weeks to 01 November 01.

Family 3^rd – World numbers, China, India jumped four weeks to 01 December 01; 1 week advance for Mexico to 1 January 93 ; Philippines moved one week to 22 July 92.

Family 4^th – World numbers, China, India jumped three weeks to 8 September 00; Mexico advanced one week to 15 May 96; Philippines jumped three weeks to 01 November 88.

Employment 1^st – still current in all categories.

Employment 2^nd – World numbers, Mexico, Philippines still current, China and India jumped one year to 01 January 10.

Employment 3^rd – World numbers, Mexico, Philippines advanced three weeks to 22 February 06; China jumped six weeks to 1 December 04; India moved one week to 15 August 02.

Employment 3^rd Other Workers – World numbers, Mexico, Philippines jumped three weeks to 22 February 06; China remains unchanged to 22 April 03; two week advance for India to 15 August 02.

Employment 4^th – still current in all categories.

Employment 5^th – still current in all categories.

Prevailing Wage Processing Timeline:

PERM: Week of October 23, 2011
H-1B: Week of November 6, 2011
H-2B: Week of December 18, 2011

“Current” carries a different meaning in each program:

A prevailing wage determination is “current” in the PERM and H-1B programs when it is issued within 60 days of submission. For H-2B prevailing wage determinations, “current” is within 30 days of submission in accordance with the program’s regulations. These dates may be subject to change based on actions not anticipated by the Department at this time such as any additional judicial determinations.

The PWD appeals are being processed as resources allow with priority being placed on becoming current on initial PWD requests in each of the respective program areas.

Since then, pressure has been mounting for the DOL to lift the suspension and resume processing.  Processing has resumed but the backlog persists.  To update you, at a recent Department of Labor (DOL) stakeholder conference call, Bill Carlson who heads the Office of Foreign Labor Certifications (OFLC), provided news on current efforts to reduce the backlog of PERM prevailing wage requests and he provided a specific timeline for eliminating the backlog on all prevailing wage requests.

Prevailing Wage Processing Timeline:

• Currently, DOL is processing prevailing wage requests received in early June.1 Prevailing wage requests dated prior to June 1 may be held up because of complicated issues such as use of an alternate wage survey and specific geographic location.
• By mid-October, DOL expects to shift back its resources back from processing H-2B prevailing wage determinations to PERM prevailing wage requests.
• By November 1, 2011, DOL commits to have PERM prevailing wage request processing times back in-line with 60 days from time of filing.

DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

For example, foreign nationals often come to work or study in the United States on an H-1B, F-1, or other non-immigrant visa. In doing so, he or she often chooses to bring a spouse or child on the H-4, F-2, or other corresponding derivative visa. Such corresponding “derivative status” extends only to dependents which are limited to the nuclear family, i.e. children and spouse — not same-sex partners, elderly parents, brothers, sisters, or other household members.

Under the new policy guidance, derivative-type status will confer through the B-2 visa to such “household members” of a principal nonimmigrant who (1) regularly resides in the same dwelling as the principal nonimmigrant, and (2) with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

Thus, a same-sex partner, girlfriend, boyfriend, parent, sibling, or other “household” member who would not ordinarily benefit through derivative H-4 or F-2 type status from the principal H-1B or F-1 visa holder can now receive the same derivative-type benefits — legal status to enter or continue their stay in the United States with the principal non-immigrant if they can demonstrate regular cohabitation and a bonafide relationship, e.g. couples, caregivers, and the like.

These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder who is in the United States in another status (H-1B, F-1, etc.).

Department of State (DOS) guidance directs consular officers to notate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from the Department of Homeland Security (DHS) for the duration of the principal alien’s nonimmigrant status. The new policy is intended to ensure USCIS adjudicates these applications uniformly and consistently with the manner in which DOS issues the visas.

In June 2009, USCIS announced the resumption of Premium Processing Service for certain I-140 petitions, specifically excluding Petitions for National Interest Waiver and Multi-National Executives and Managers.  Today, two years later, USCIS still lists these categories as, “not yet available” for Premium Processing Service. 

Seems like a no-brainer that U.S. Policy should ensure proper resources toward the adjudication of Petitions for National interest Waiver; particularly as they tout job creation initiatives, innovation and entrepreneurship through immigration.  My friend Vivek Wadhwa, a Washington Post writer and entrepreneur himself, believes that USCIS is taking steps in the right direction, as do I, but I question their implementation of anything meaningful as of yet in that regard.  This is just one such example where, through a simple fix, the administration can encourage the immigration and contributions of the best and brightest by providing them the option of faster processing of their application.  For entrepreneurs and other Sergey Brin’s who will boost our economy by creating jobs and our increase our nation’s ability to innovate as Google has done, do we want to tell them that they will have to wait several years in line while others can take advantage of Premium Processing Services?  Indeed, by definition, as USCIS explains, national interest waivers are granted to those who have exceptional ability; whose employment in the United States would greatly benefit the nation because of the foreign national’s unique abilities in the sciences, arts, professions, or business.  We need real pragmatic solutions to encourage and stimulate the economy, not just PR and talk. 

USCIS, through its regulations at 8 CFR 103.2(f)(2), has the ability to offer Premium Processing Services for certain petitions to meet the needs of its “customers.”  When the Premium Processing Service is made applicable to a particular type of petition, USCIS guarantees petitioners that, for a $1,225 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,225 fee and continue to process the request as part of the Premium Processing Service. In addition to faster processing, petitioners who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition.

The temporary suspension is the result of the DOL’s reallocation of all of its Office of Foreign Labor Certification (OFLC) resources towards satisfying a June 15th court order by the United States District Court for the Eastern District of Pennsylvania to reissue approximately 4,000 H-2B wage determinations, to reflect the new H-2B wage rates that will apply for H-2B employment on or after September 30, 2011. The June 15, 2011 court order stems from an old August 30, 2010 decision in CATA v. Solis, where the district court ordered DOL to promulgate new H-2B prevailing wage regulations.

It is unclear how long the suspension of prevailing wage determinations will last. The suspension is temporary. For now, the DOL has apparently made the improvident decision to devote all of its OFLC resources towards complying with the June 15th court order. Processing will resume as soon as full compliance with the court order has been completed by the DOL. In the federal rule published on August 1, DOL indicated that while they will be able to reissue all of the required H-2B wage determinations before October 1. However, they also stated that DOL could not reissue all 4,000 required H-2B wage determinations before August 31, 2011. Thus, we can extrapolate that the suspension — if they are to stand firm with their decision against the use of any of its resources toward their other responsibilities here — would last at least until August 31, 2011, but should not last beyond October 1. That said, there is no way at this point of knowing if the DOL will resume sooner or later; DOL has not actually issued any notice on when they will resume the processing of prevailing wage requests, redeterminations, or reviews. Stay tuned.  Also, when the suspension is lifted, presumably there will be a backlog of prevailing wage requests, redeterminations, and reviews that will cause a delay in processing. Moreover, DOL’s policy is that they will not expedite, and applications will be handled on a first-in, first-out basis in all cases. For what its worth, the DOL states that they “continue to encourage all requestors to submit their ETA Form 9141 [prevailing wage determination requests] at least 60 days in advance of the employer’s initial recruitment efforts.”

American Immigration Lawyers Association (AILA) liaisons have been in communication with the DOL for the past several weeks about the prevailing wage delays (as well as other problems related to the new SOC codes introduced on July 1), and has forwarded specific requests for guidance and information to the DOL. As Chair-Elect of the AILA-DC Chapter, I am aware that AILA has also asked that the DOL immediately resume the processing of all prevailing wage requests, as suspension of prevailing wage determinations prevents employers from filing any PERM applications. Moreover, AILA has contacted the DOL for additional information on steps it is taking to comply with the court order, including how long it will take to reissue the H-2B wage determinations, and the short-term, as well as long-term, impact of the order on prevailing wage processing times.

The DOL will be holding a call with AILA liaisons and other stakeholders next week on prevailing wages, and we hope that the DOL will be able to provide some estimate on prevailing wage determination processing times, as well as whether any relief may be available for PERM cases that must be filed due to AC-21 requirements, expiring recruitment, or other reasons.

Please stay tuned for as we gather further information from the DOL on prevailing wage processing.

In 2010, 5,414 petitions were submitted to USCIS for their review.  Of those, 3,272 (60%) were approved and 2,142 (40%) were denied, with about 2,783 (51.4%) Requests for Further Evidence (RFEs) issued.

Thus far in 2011 through July 19th, 4,078 petitions were submitted to USCIS for their review.  Of those, 2111 (62.32% of the total 3387 adjudicated) were approved and 1,276 (37.68% of the total 3387 adjudicated) were denied, with about 1,827 (53.94% of the total adjudicated) Requests for Further Evidence (RFEs) issued.

The 2011 statistics indicate that USCIS is on track to receive more petitions in this category in comparison to 2010.  Also, the percentage of RFEs issued has increased.   Although unclear, this may be due to USCIS’ use of the “final merits analysis” in the context issuing RFEs and decisions for Extraordinary Ability petitions as reflected in USCIS Interim Policy Memo, “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” USCIS PM-603-005, at 3 (Aug. 18, 2010).  

Generally, the EB-1A (“E11″) immigrant classification applies to individuals with extraordinary ability in the sciences, arts, education, business, or athletics. The individual must demonstrate that they have sustained national or international acclaim and that their achievements have been recognized in the field of expertise, indicating that they are one of that small percentage who has risen to the very top of their field of endeavor. The individual must plan to continue to work in their area of extraordinary ability and they must substantially benefit prospectively the United States.

The regulations state that to meet the standard of “extraordinary ability” in the field, applicants must meet three out of the ten listed criteria:

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
• Evidence of your membership in associations in the field which demand outstanding achievement of their members
• Evidence of published material about you in professional or major trade publications or other major media 
• Evidence that you have been asked to judge the work of others, either individually or on a panel
• Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
• Evidence of your authorship of scholarly articles in professional or major trade publications or other major media 
• Evidence that your work has been displayed at artistic exhibitions or showcases 
• Evidence of your performance of a leading or critical role in distinguished organizations 
• Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
• Evidence of your commercial successes in the performing arts

Each piece of evidence and the overall final determination is analyzed from the purview of whether the individual has demonstrated extraordinary ability.

The USCIS Interim Policy Memo cites, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), as establishing a “two-part approach where the evidence is first counted and then considered in the context of a final merits determination.”  Unfortunately, the Policy Memo at note 4 on page 3 states — with no guidance — that, “[t]he ISO must first evaluate the evidence on an individual basis to determine if it meets the criteria, and then must consider all of the evidence in totality in making the final merits determination.”  The Policy Memo, like the Kazarian court, falls short in providing guidance in making the “final merits determination.”  Indeed, the Kazarian court found that the plaintiff failed to provide evidence to meet three of the ten criteria and upheld USCIS’ denial solely on that basis.  The court concluded “the applicant has failed to satisfy the regulatory requirement of three types of evidence.”  Kazarian at 1122.  The court never reached the issue of how the second step in the analysis should be conducted.  Thus to rely on it as providing the proper approach where no such analysis or guidance was articulated is improper; it invites arbitrary and capricious results to simply leave it open-ended by relying on a case that never addressed the matter factually. 

Whether or not USCIS’ use of the “final merits analysis” is the reason for the decrease in the percentage of approvals thus far in 2011 is yet to be determined.  Nonetheless, to ensure predictive standards for applicants and confidence in adjudications, USCIS need only look to the analysis articulated by Buletini to provide an approach that will best achieve the goals of consistency and transparency.  As such, USCIS should take the more articulated Buletini approach followed by federal courts since its annunciation which stated: “Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. §204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard.”  See Buletini v. INS, 860 F. Supp. 1222, 1234 (E.D. Mich. 1994).  This approach preserves and supports the clear regulatory language of what evidence is required for a prima facie approvable petition and it avoids the catch-22 of the Kazarian “final merits analysis” proclamation which merely says that if the evidence has been provided in accordance with the regulatory standard of extraordinary ability, determine if the regulatory standard of “extraordinary ability” has been met.