Worldwide EB-2 Preference Category to Regress to January 2009

June 26th, 2012

The US Department of State’s release of the Visa Bulletin for July 2012 shows the establishment of a cut-off date of January 1, 2009, for the worldwide EB-2 preference category.  This is due to the continued heavy demand for numbers in the EB-2 preference category (there are only 140,000 visa numbers available each year).   China and India EB-2 will remain “unavailable”  for the remainder of the fiscal year.  If demand is considered “heavy” during these economic doldrums then it is hard to imagine how much further they can backlog when the economy strengthens.

Let’s hope that some of the pending legislation will alleviate this growing backlog, including:

S. 3192, SMART Jobs Act, introduced by Senators Alexander (R-TN) and Coons (D-DE) on May 16, 2012. S. 3192:  This creates an F-4 nonimmigrant visa for
students pursuing an advanced degree in mathematics, engineering technology, or the physical sciences in the US and provides them with legal permanent residency if they obtained employment related to their field of study.

S. 3185, the STAR Act, introduced by Senator Cornyn, which allocates 55,000 immigrant visas for eligible STEM (science, technology, engineering, math) graduates of qualifying U.S. research institutions who have job offers in related fields. This is made possible by the elimination of the diversity visa program, which is a lottery for legal permanent residency for residents of certain low-demand countries.


BALCA Case on Validity of the Job Order for the PERM Labor Certification

June 26th, 2012

In Industrial Steel Products, LLC, 2012-PER-00542 (June 21, 2012), BALCA held that the 180-day validity period for the job order should be calculated based on the commencement date of the SWA job order rather than the end date. The regulation at 20 CFR §656.17(e) provides that a job order must be placed with the SWA for a period of 30 days and conducted at least 30 days but no more than 180 days before the filing of the labor certification application. BALCA cited Blue Mountain Stone, Inc. 2010-PER-481 (Feb. 24, 2011) for an explanation: “Under the regulations, the SWA job order must have ended at least 30 days prior to the filing of the Form ETA 9089. . . This regulatory requirement is designed to ensure that an employer has sufficient time to receive resumes, make contact with any applicants, conduct interviews and make decisions regarding applicants who have responded to the job . . .”

Therefore, BALCA affirmed the certifying officer’s denial of the labor certification where the employer placed the job order more than 180 days prior to filing the Form ETA 9089 PERM labor certification application.

USCIS Updates Fiscal Year 2013 H-1B Cap as of June 1, 2012

June 5th, 2012

As of June 1, 2012, USCIS has received nearly 55,600 H-1B petitions subject to the FY 2013 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 18,700 H-1B petitions subject to the FY 2013 US master’s degree cap, of which there are 20,000 visas each fiscal year. If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that the cap may not be reached until the end of this year or even later, since the numbers moved by only 1,000 for the bachelor’s cap in one week.
Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2013, requesting a start date of October 1, 2013.