Month: May 2023

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.

As published in the Immigration Daily on May 1, 2023

USCIS announced the results of the FY-2024 H-1B initial registration period results on April 28, 2023, and they revealed a lot as to why there were so many disappointments this March. What a broken system! USCIS received 780,884 H-1B registrations of which over half were from beneficiaries with multiple submissions – 350,103 of people with one application and 408,891 of people with more than one. 110,791 selections were made, less than last year’s 127,600 because of anticipated higher H-1B1 use (which is set off against the H-1B numbers) and a higher anticipated petition filing rate by selected registrants. So the selection rate was 14.19% overall and if taking into account only the 758,994 eligible registrations (those that were not disqualified, deleted, or had payment problems), 14.6%.

It is apparent that there is much fraud in the selection process with individuals and companies putting up multiple applications. Under the law, H-1B registration for an individual is generally only one (no multiple applications by the same organization) and should only be made by an organization with a bona fide need for the individual. The exception is where another organization has its own bona fide need for the individual. The staggering number of beneficiaries with multiple eligible registrations, 408,891, belies this premise. It is clear that many individuals and organizations are colluding in the multiple applications and effectively squeezing out bona fide applicants.

What is the solution – we propose that it is to go “Back to the Future” and once again have organizations file full petitions instead of merely paying nominal amounts of money (currently $10 per registration) for the privilege of filing the specialized occupation petitions. Individuals and their organizations have no “skin in the game” to not try to game the system given the low threshold to play and lack of enforcement against violators. My partner, Arthur Lee’s article two years ago, “Recommendations to Improve H-1B Lottery System”, Immigration Daily 4/14/22, pointed out the astonishing rise of 53.5% in the number of H-1B registrants in FY 2022, 308,613, as opposed to the 201,011 H-1B petition registrations in FY 2020, the year before USCIS switched to the lottery registration system, and advocated a rise in the registration fee from $10 to $100 as a partial solution. USCIS has now proposed a fee increase to $215. However, this writer does not believe that even such a large fee increase will have any effect as the staggering numbers here indicate that many organizations and individuals will simply consider the amount a cost of doing business, and it is well known that USCIS fee increases do not discourage applications for immigration benefits. A prime example is USCIS’ premium processing fee which has risen from program inception of $1000 to today’s $2500 (for most cases) and only seen highly increased usage of the service. The real deterrent to this type of fraud is to have interested organizations put in full petitions with documented need for the individuals. One of the reasons given by USCIS for implementing this failed registration system was the voluminous number of papers that would have to be returned for each unselected petition – however, the amount of paperwork is now halved as the agency no longer requires duplicate copies of H-1B petitions.

From FY 2018- 2020 just prior to the implementation of the registration system in FY-2021, the number of received petitions in the three years hovered in the consistent range of 190,000 – 200,000. With the registration system in place in FY 2021, registrations zoomed up to 274,237, the next year 308,613, the next 483,927, and this March 780,884. At this rate without change, the number will exceed 1 million by next year because of fraud without regard to the economic conditions of this country. Many H-1B pundits had thought that the numbers would drop this year because of problems in the tech sector resulting in tens of thousands of layoffs, but were sadly mistaken.

So it would seem that the only sensible solution is to go “Back to the Future”. In its announcement of the overall numbers on April 28, USCIS acknowledged in a paragraph, “Measures to Combat Fraud in the Registration Process”, that the large number of multiple eligible registrations raised serious concerns of some gaining unfair advantage, but only reiterated the penalties which many have already ignored and will likely keep ignoring until there is some real “skin in the game”.