June Immigration Updates
June 15, 2009
The American Immigration Lawyers Association's annual June conference brought confirmation by government officials of further visa retrogression throughout this summer, delay in the requirement date for mandatory federal contractor e-Verify participation, PERM adjudication issues as well as possible delays in the requirement of the new PERM form. The government's iCert Labor Condition Application portal is still targeted to become mandatory on Wednesday, July 1, 2009, despite repeated complaints.
• Visa Retrogression
The U.S. Department of State representatives related that all 140,000 available permanent visas for this fiscal year ending September 30, 2009 designated for employment based visa petitions will be used by the end of the 2009 fiscal year. Late last week, the Department of State released its July Visa Bulletin, which contained dire news for Indian and Chinese nationals. As of July 1, 2009, Employment-Based, First Preference category ("EB-1") visa numbers will remain current and EB-2 visa numbers will be current for all countries except India and China, which will only be made available for petitions filed on or before January 1, 2000. EB-3 numbers remain unavailable for nationals of all countries.
Further, the Department of State predicts the following in the coming months:
• EB-1 visas for "all other" countries will likely remain current until October 1, 2009, however, those numbers may run out for Indian and Chinese nationals before the end of the fiscal year.
• EB-2 visas for Indian and Chinese nationals will likely remain very retrogressed for the remainder of the fiscal year.
• EB-3 visas for all countries will remain unavailable for the remaining of the fiscal year.
• EB-3 visas will be made available to Indian, Chinese and Mexican nationals after October 1, 2009 with priority dates before:
o March 1, 2003 (China)
o November 1, 2001 (India)
o March 1, 2003 (Mexico).
The Obama administration has once again delayed the start date of required E-Verify participation for federal contractors until September 8, 2009. Despite repeated delays, it does appear that that the administration favors this legislation and will ultimately impose this requirement.
• PERM Processing Continued Delays //Supervised Recruitment under PERM
The U.S. Department of Labor representatives confirmed that employers may expect continued delays in processing PERM applications, both in the minimum amount of time (about 8 months) the government will take to adjudicate cases without audits, the additional 9 months time with audits and, more critically that funding is in place to implement the government's ability, on a case by case basis, to require employers to undergo "supervised" recruitment for certain types of industries and companies and case types. Under supervised recruitment, resumes are sent to the government instead of the employer and the ultimate adjudication timeframe may be even more lengthy.
• Return of Premium Processing for I-140 Visa Petitions
The government announced that it may restore petitioners' ability to file expedited I-140 visa application packages by premium processing. It currently provides only very limited circumstances under which it will accept such cases. Currently, the government takes from 4-8 months to adjudicate I-140 visa petitions.