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The Labor Department has posted processing times current as of Aug. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in July and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in February and earlier, and appeals filed in July and earlier are being reviewed for reconsideration.
Average PERM processing times in August:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in June and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in July and earlier for PERM cases. Center director reviews are being conducted on appeals filed in July and earlier for PERM cases. The department reported that it had no redeterminations or center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in August:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in July and is awaiting PWDs for requests filed in June and earlier.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP.
The government’s recent decision to suspend premium processing for H-1B cap petitions until February—effectively spelling the end to expedited service for most H-1B cases for the rest of this year and part of next—is more than a small processing tweak. It will exact a substantial toll on businesses and their employees by removing their ability to control an important tool for business planning: the timeline.
Not only will the current suspension on premium processing continue for H-1B cap petitions filed in April, but beginning Sept. 11, the suspension will be expanded to cover all H-1B cases, with only very limited exceptions. The suspension is expected to last until Feb. 19, 2019, and applies to all new H-1B cap-subject petitions as well as H-1B extensions involving a change of employer, or change of job terms or location with the same employer.
Premium processing is a widely used service that allows employers to pay an extra fee to guarantee a response from USCIS within 15 days. Without premium processing, an open-ended timeline creates instability for businesses and their employees. Employers who are understaffed and need to sponsor foreign nationals to fill those jobs may need to wait eight to 10 months for a decision and can no longer pay an extra service fee (currently $1,225) to ensure faster processing. The fee will increase to $1,410 in October, but for the next five months there will be no amount of money an employer can pay to hold USCIS adjudicators to a reasonable and predictable processing time frame in order to keep hiring on track and get a much-needed H-1B employee to start work.
The elimination of premium processing also creates anxiety and uncertainty for H-1B employees. The policy potentially boxes them into their current employment and inhibits their job mobility and ability to travel. Employees are less likely to switch to a better job before having an H-1B approval in hand and employers are unlikely to be able to wait months and months to hire or change the major duties or worksite of an H-1B employee. Many F-1 students on OPT cap-gap employment authorization will not receive a decision on their H-1B petition by Sept. 30, will lose work authorization on that date and will need to stop working until their petition is approved. Workers already in H-1B status who have filed for an H-1B extension may continue to work for the same employer on the basis of the petition, but only for 240 days, and they should not travel abroad while their extension petition is pending, potentially interfering with business and holiday travel.
It is hoped that the government’s stated reasons for the suspension of premium processing—to reduce backlogs and prioritize long-pending cases—prove true. In the meantime, employers and employees will need to work closely with their immigration advisors and plan carefully during this period of uncertainty to minimize disruption to business and to their employees’ careers.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
Two key U.S. Citizenship and Immigration Services policies will go into effect Tuesday. USCIS will implement a new policy giving adjudicators more discretion to deny cases without first issuing requests for evidence (RFEs) or notices of intent to deny (NOIDs). It will also expand its current suspension of premium processing to cover most H-1B petitions, including transfer and amended petitions.
Petitioners may still request expedited processing, but this is granted only in very limited circumstances such as an emergency, severe financial loss or USCIS error. USCIS encourages petitioners to provide documentary evidence in support of these requests. These decisions are made on a case-by-case basis at the discretion of USCIS.
BAL Analysis: BAL has routinely supported its clients in providing all initial evidence listed in regulations when a petition is filed. This has led to a very low RFE rate. Should the agency announce new requirements, BAL will work to adjust accordingly. Companies and applicants are encouraged to work closely with their BAL professional should additional information be requested.
With respect to the premium processing suspension, applicants should anticipate delays in H-1B processing for pending cap cases and for transfer and amended petitions that are filed on or after Sept. 11. BAL professionals remain available to advise companies on the impacts of the premium processing suspension.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
A federal judge in Texas declined to put an immediate halt to the Deferred Action for Childhood Arrivals program Friday, even as he said the program is probably illegal. In the case, Texas and nine other states have sued to end DACA, claiming that former President Barack Obama acted unlawfully when he created the program in 2012.
Key points:
Background: DACA has been the source of extensive litigation this year. President Donald Trump moved to end the program last year, but plaintiffs sued and federal courts in California, New York and Washington, D.C. all ruled that the administration must continue accepting renewal applications while legal challenges play out. The Texas case is different because it does not challenge Trump’s decision to end DACA, but rather whether Obama had the legal authority to establish it in the first place. A ruling in favor of the states on the merits of their case, which seems likely based on Hanen’s reasoning, could set up a scenario where the U.S. Supreme Court would weigh in to determine the legality of DACA and Trump’s decision to end it.
BAL Analysis: The ruling means that for the time being, DHS will continue accepting renewal applications, but not new applications under the DACA program. BAL will continue to provide updates as the DACA litigation continues in federal courts in Texas and elsewhere.
U.S. Citizenship and Immigration Services said Friday that it will increase the premium processing fee to $1,410 on Oct. 1.
Background: USCIS announced the increase days after it said it would extend its premium processing suspension for H-1B cap-subject petitions until Feb. 19, 2019. USCIS also said it will broaden the current suspension beginning Sept. 11 so that it covers most other H-1B petitions, including transfer and amended petitions. The only H-1B petitions for which premium processing will be available on or after Sept. 11 are (1) petitions filed exclusively at the Nebraska Service Center by an employer requesting a continuation of previously approved employment without change with the same employer and (2) petitions filed exclusively at the California Service Center where the employer is cap-exempt or where the employee will be working at a cap-exempt organization. Petitions in the second category are typically filed by universities and nonprofit research institutions.
BAL Analysis: Employers should budget for the upcoming premium processing fee increase and are reminded that the previously announced premium processing suspension will be longer and broader than initially expected. Employers should anticipate delays in H-1B processing for pending cap cases and for transfer and amended petitions that are filed on or after Sept. 11.
Fifty-nine CEOs representing some of the country’s largest and most powerful companies have signed a letter expressing their “serious concern” about immigration policy changes under President Donald Trump.
The Business Roundtable, a group of CEOs working to promote pro-business public policy, sent the letter last week to Homeland Security Secretary Kirstjen Nielsen.
“Inconsistent government action and uncertainty undermines economic growth and American competitiveness and creates anxiety for employees who follow the law,” the letter said. “In many cases, these employees studied here and received degrees from U.S. universities, often in critical STEM fields.”
The letter mentioned four policy changes in particular:
The New York Times reported that USCIS responded to the letter by saying the administration is “relentlessly pursuing necessary immigration reforms that move towards a merit-based system” and that it handles visa applications “fairly, efficiently, and effectively on a case-by-case basis.”
The CEOs warned, however, that the administration’s policies have the potential to hurt American companies in the global economy.
“As the federal government undertakes its legitimate review of immigration rules, it must avoid making changes that disrupt the lives of thousands of law-abiding and skilled employees, and that inflict substantial harm on U.S. competitiveness,” the letter said.
U.S. Citizenship and Immigration Services announced Tuesday that it will extend its premium processing suspension for H-1B cap-subject petitions. The agency also said it will expand the suspension to cover some H-1B petitions that were not included in the initial suspension.
Key Points:
Background: USCIS imposed the current suspension April 2, the first day cap-subject petitions could be submitted this year. The suspension was expected to be lifted in September, but the agency said Tuesday it is extending and broadening the current suspension in order to improve overall H-1B processing times by allowing it to process long-pending petitions, be more responsive to time-sensitive petitions and to prioritize H-1B extension-of-status cases that are nearing the 240-day mark.
BAL Analysis: USCIS’s announcement means that its H-1B cap premium processing suspension will be five months longer than initially expected and that it will apply to additional petitions beginning Sept. 11. Employers should anticipate delays in H-1B processing for pending cap cases and for transfer and amended petitions that are filed after Sept. 10. USCIS said it will notify the public on its website when it intends to lift the suspension. BAL will provide further updates as they become available.
The United States and Mexico announced Monday that they have tentatively agreed to terms for a new trade agreement, one that has the potential to reshape the North American Trade Agreement for years to come.
No information has been released on how the agreement would affect immigration. Nor is it clear whether Canada will be part of the deal, though officials said they hoped Canada would come on board by the end of the week.
Trump has made renegotiating NAFTA a key part of his trade and immigration policies. Negotiations began shortly after Trump took office, with the president saying he would withdraw the U.S. from the trade agreement if it is unable to reach a better deal.
BAL Analysis: The U.S.-Mexico trade deal has the potential to reshape NAFTA, though many of the details remain unclear at this point. Canada’s position is not yet known and any final agreement would likely have to be approved by Congress before it could take effect. NAFTA’s immigration provisions will remain in place unless a new deal is finalized or the U.S. withdraws from NAFTA. BAL will continue to monitor developments on the trade negotiations and will update clients on any significant changes.
Somali nationals who want to maintain their Temporary Protected Status through March 17, 2020 must re-register between now and Oct. 26, U.S. Citizenship and Immigration Services has announced.
Background: DHS announced earlier this year that it would extend TPS for nationals of Somalia who qualify for the program. The Trump administration has moved to end TPS designation for a number of countries, but opted to extend it for Somalia, saying that “ongoing armed conflict and extraordinary and temporary conditions that support Somalia’s current designation for TPS continue to exist.”
BAL Analysis: The decision to extend TPS for Somalia reflects DHS’s conclusion that Somalia remains extremely dangerous. DHS will review conditions in Somalia at some point before March 17, 2020, to determine whether TPS should be extended again.
U.S. District Judge John D. Bates has ruled that the Trump administration is not required to begin accepting new applications under the Deferred Action for Childhood Arrivals program while the administration appeals his ruling that ending DACA was unlawful. However, he ruled, the Department of Homeland Security must still continue to accept renewal applications.
Background: The Trump administration rescinded the Obama-era DACA program on Sept. 5, 2017, with a delayed effective date of March 5, 2018. On April 24, Judge Bates ruled in U.S. District Court for the District of Columbia that the rescission violated the Administrative Procedure Act. He gave the government three months to either issue a new rescission order or provide adequate legal justification for its decision. Earlier this month, the judge declined to revise his April order, ruling again that the government was required to restart the DACA program.
Two other federal courts, in California and New York, have also ordered the administration to continue accepting DACA applications, but those decisions applied to DACA renewal applications only. A court in Texas, meanwhile, heard arguments this month in a separate lawsuit filed by Texas and several other states, seeking to force the administration to end the DACA program. If the Texas court sides with the states, the administration will likely seek Supreme Court review.
In granting the government a partial stay of his original order, Judge Bates referred to the confusion the litigation has caused. “The Court is mindful that continuing the stay in this case will temporarily deprive certain DACA-eligible individuals, and plaintiffs in these cases, of relief to which the Court has concluded they are legally entitled,” Bates wrote. “But the Court is also aware of the significant confusion and uncertainty that currently surrounds the status of the DACA program, which is now the subject of litigation in multiple federal district courts and courts of appeals.” For this reason, he wrote, he granted the partial stay in order to preserve the current status quo for the time being.
BAL Analysis: The ruling does not have any immediate practical effect because the government had not yet begun accepting new DACA applications under Judge Bates’ earlier rulings. For now, DHS will continue accepting renewal applications, but not new applications. BAL will continue to provide updates as the DACA litigation continues.