The Department of Labor published statistics for cases filed in 2014, year to date. The statistics can be found at this link: http://www.
foreignlaborcert.doleta.gov/ pdf/PERM_Selected_Statistics_ FY2014_Q3TD.pdf.
Some interesting observations are PERM applications are down 7% from 2013 year to date. The decrease in PERM numbers can either be attributed to the backlog or retrogression seen for China and India. Its unlikely that a decrease in jobs is the reason as it appears that the department of labor jobs numbers have indicated a creation of jobs. As an Immigration lawyer we get to hear a lot of feedback from Employers. Unless there is a reason to extend the H1B numbers beyond 6 years, there is not as much motivation to file PERM Applications for Indian and China born Beneficiary’s.
Another interesting statistic is that India accounted for 21,447 or 55% of all applications. China only accounted for 7% of the PERM applications. Clearly, Indian PERM applications are the majority of the filings. Its an interesting observation that China accounts for approximately 80% of all EB5 applications. India seems to be the PERM market which is reflected in the Visa Bulletin numbers while China appears to be the EB5 market which may also be reflected in the Visa bulletin Numbers. The Department of State has indicated that China EB5 numbers will retrogress later this summer.
A very interesting statistic is that Advanced degree PERM Applications (ie. a Master’s Degree or Professional Degree) account for 55% of all applications while Bachelor’s Degree filings only account for 38%. Clearly, the labor force is becoming more educated and having an advanced degree is no longer an advantage for PERM filings. While I am not hearing any more news about Immigration Reform for 2014, a properly drafted bill should hopefully take into account that the labor force is becoming more educated. The allocation of more Immigrant Visas for advanced degree holders should be accounted for.
Brief History of High-Skilled Immigrants ActThe fairness of High Skilled Immigrants Act was discussed during a February 13, 2013 Senate Hearing. If you recall, the Bill was introduced to the House in September 2011 and subsequently passed in November 2011 by the U.S. House of Representatives. It has subsequently been stalled by the Senate. However, during a Senate Hearing Senator Lee, a Republican from Utah stated he will be introducing the bill in the Senate.
What is the purpose of this Act?The purpose of the Fairness of High Skilled Immigrants Act is to “amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, to increase the per-country numerical limitation for family-sponsored immigrants, and for other purposes.”
Who will be affected under this Act?As many are aware, the per country limitations is a complete disaster. By a simple review of the Visa Bulletin, you will see that a skilled worker in the Employment Based Green Card category of EB3 from India has over a 10 year wait time. In other words, an employer will commit to an employee from India who has the equivalent of a U.S. Bachelor’s degree by offering the EB3 worker from India a permanent job offer. The employer will go through the rigorous process of PERM (Labor Certification) undertake thousands of dollars in advertising costs and attorney fees, obtain an approval, file an I-140 petition to prove the merits of the case, obtain an approval, and then be stalled for 10 years. The employer is on hold and the employee is on hold and forced to go through H1B renewal after renewal incurring substantial costs. The green card wait time for other employment based green card categories are not significantly better, an EB2 employee from India has an average of 9 year wait time and someone from China generally has a 5 year wait time in EB2 Preference Category.
Will lifting the per-country cap on employment based green card solve the backlogs?The reason for this backlog is because of INA Section 201, “Worldwide Level of Immigration” This section of the Immigration Act limits the amount of Immigrant Visas available worldwide and by country. In other words, each country is capped at 7% of the worldwide level of available Immigrant Visas. The Department of State reports that “immigrant visa issuance during fiscal year 2013 are limited by the terms of INA 201 to no more than 226,000 in the family-sponsored preferences and approximately 154,000 in the employment-based preferences.” My reading of the Fairness for High Skilled Immigrant Act does not increase the amount of worldwide Immigrant Visas available each year, but rather lifts the per country cap.
Is the pie big enough for all the demands?Another suggestion that has been made during this time of Comprehensive Immigration Reform is awarding permanent residence to persons earning a U.S. Master’s Degree or Ph.D from a University in the U.S. in the field of STEM (Science, Technology, Engineering, and Mathematics). Logically thinking, there will be a frenzy of applicants enrolling in U.S. universities for fields within STEM. This is a great idea, however if the worldwide limits are not increased for Immigrant Visas, we will still maintain the same backlog. I am not a Mathmetician, but more demand for the same size pie (i.e. no increase in the amount of worldwide Immigrant Visas) is doomed to create the same long wait times that we are currently experiencing. I applaud the ideas for reform but as Senator Grassley said in the February 13 Senate Hearing, “I’m going to start with a quote from then chairman, Sen. Simpson of WY made on 1981 as we started down a 6years road of 1986 bill. Just as congress is about to undertake an overhaul of the immigration reform system, his words are relevant today. Since I was elected to the Senate, I have served on this committee. I voted for the 1986 amnesty bill because I believed it was a one-time solution to the problem. I was wrong. I applaud the movement by members to work towards an agreement. I have read the Senate bi-partisan framework. One line that struck me: “we will ensure that this is a successful permanent reform that will not need to be revisited” that sentence is the most important part of that document. We must learn from our previous mistakes so we don’t have to revisit the problem…” So let’s get this right this time around. Let’s involve mathematicians and statisticians to estimate the amount of supply and demand needed to eliminate backlogs that make our country less competitive and deter the brightest minds from being able to stay and Immigrate to the U.S. By Attorney Gerald Cipolla *Cipolla Law Group is a full service immigration law firm located in downtown Chicago. Our Immigration lawyers have over 25 years of combined experience and excellent proven records to help businesses and individuals obtaining their visas and green cards. If you are looking for an experienced immigration lawyer, please contact us today.
In high school a friend had an assignment describing his utopia. In case you are not familiar with utopia, its essentially an ideal world; or as Wikipedia describes it, utopia is “an ideal community or society possessing a perfect socio-politico-legal system.” I guess it was a sign that we’re not living in our own version of a utopia when my friend received this fun assignment and I was likely assigned something painful like trigonometry or geometry, clearly not my version of utopia but I digress. As an Immigration lawyer I have my own version of Immigration Utopia. My ideal world of how US Immigration should work. As mentioned above, we are clearly living in a painful time of immigration. With many people sneaking into the US with clear demand for their labor and family presence as well as others that have clearly proven their case but there are not enough available green cards to be allotted. The most painful of all, a child brought to the US without inspection or even with inspection, they mature like a normal American kid, go to high school, college, and then want to find a job only to realize they do not have Immigration status. These examples are just to show we are not living in my version of Immigration Utopia. So below is a top five list of changes that would move us towards my subjective world of U.S. Immigration. 1. Guest Worker Program Guest Worker Program for North America with path to normal immigration system (i.e. eligibility for green cards and naturalization if qualify). The guest worker program system would allow those already in the U.S. without a criminal record to be eligible, however, a large fee would be fair to those that have complied with current laws and have gone through the long process. 2. Dream Act Dream Act with path to a green card and eligibility for naturalization. For example, if a child is taken to the U.S. illegally and they go through college or serve in our military, they should be eligible for non-immigrant status in the US with an ultimate path to a green card based on eligibility through employment, investment, or marriage to a US Citizen. 3. Expansion of Employment based Green Card Categories More employment based Green Cards; Its extremely unfair to have a backlog of many years when an employer takes the time to sponsor someone for an EB3 or an EB2 (ie. an employment based green card) and then be expected to wait for 5 to 10 years. These are US employers that would like to retain skilled talent in the U.S., ie. persons from around the world such as India, China, Canada, Australia, and other parts of the world. The persons applying for these green cards are generally highly skilled and persons that contribute to our economy. Its in the interest of our country to want to attract some of the best and brightest from around the world. However, someone applying for an EB3 currently has a 6 year wait time. And this can fluctuate dramatically. This is not fair for U.S. employers and for these skilled persons from around the world to have to jump through hoops for 6 years, incur attorney fees, government filing fees, advertising costs, and a lot of stress with no guarantee of being approved after the long wait period. 4. Elimination of PERM System Elimination of the PERM system – PERM is the process of recruitment in employment based green cards to make sure there are no available U.S. workers qualified for the permanent position being offered to the overseas person by the U.S. employer. Presumably the U.S. employer conducted an extensive search when they first hired the overseas person. After working for the U.S. employer for a period of time, the U.S. employer liked the overseas worker enough to want to employ the person full time and incur more immigration costs. Now the U.S. employer must recruit again for this position. What about the poor persons that apply for this position. They have a pretty small chance of being offered the job when the U.S. employer is just conducting the recruitment to satisfy the green card process. Now, not only is the employer’s time being wasted, but so is the poor people making an application to this position that really is not meant for them. They could use that time to find other jobs that are guaranteed to be open. 5. Electronic Immigration Filing System Fully electronic immigration filing system; Although many may think of me as a Chicago Immigration Lawyer or our law firm as a Chicago based law firm, our clients are spread throughout the US and overseas. We manage to service our clients very efficiently despite the geographical barrier as we are in a world of scanning, emailing, faxing, uploading to servers, telephone, skype, etc. These invaluable tools are now becoming routine and commonplace. It only makes sense to have a full scale electronic filing system. If anyone has ever opened a credit card or bank account, our electronic signature is clearly good enough to legally bind us to the bank, I would think an electronic signature should do the same for Immigration purposes. Then again as a practicing immigration lawyer, not just a Chicago Immigration Lawyer, this is my utopia.