Immigration Quick Takes — December 2022

Expect Delays

DOL Processing Times

The U.S. Department of Labor (DOL) has published updated processing times as of October 31, 2022, confirming that the Department continues to face internal staffing shortages and high demand. As a result, we have continued to see long delays in DOL processing times for prevailing wage requests and permanent labor certification (PERM) applications across the board.

Specifically, the DOL reported that as of October 31, it was on average processing Prevailing Wage Requests filed in January 2022, or 9 months. PERM applications are nearly as delayed, with the DOL reporting that as of October 31, 2022, they are processing PERM applications filed in February 2022, reflecting an average processing time of 8 months. PERM audit processing times reflect an additional 3-month delay, with the DOL currently performing audit reviews for PERM applications filed in December 2021. It remains to be seen whether these DOL processing times will continue to climb or whether potential economic slowdowns will reduce backlogs.

In light of these significant DOL processing delays, Parker Gallini urges employers to consider starting employment PERM-based green card cases for eligible employees at least six months or even a year sooner than previously contemplated to ensure adequate time for DOL processing. Reach out to your Parker Gallini attorney for more information about the PERM process or to start a case for your employee.

December 2022 Visa Bulletin Updates

Fiscal Year 2023 is now entering its third month, with the December 2022 Visa Bulletin reflecting retrogression in multiple employment based visa categories. USCIS has announced that they will continue to accept family and employment-based Adjustment of Status applications based on the Dates for Filing in December 2022.  

The December 2022 visa bulletin reflects retrogressions for the EB-2 and EB-3 India visa categories, and retrogressions for the EB-2 All Countries visa categories due to high visa demand. For December 2022, the EB-2 India category final action date has retrogressed to October 8, 2011. The Department of State attributes this EB-2 India visa retrogression to higher than anticipated demand in the first two months of FY2023. The Department of State also noted that the first two months of FY2023 have reflected higher than expected worldwide demand for EB-2 visas, leading to a retrogression in the All Countries category to a final action date of November 1, 2022 and an application filing date of December 1, 2022. In the December 2022 visa bulletin, the Department of State also noted that it anticipates that an increased demand with lower visa number availability for EB-1 for China and India may necessitate a retrogression in this visa category in the upcoming months.

Individuals who now have backlogged priority dates may have the opportunity to secure additional H-1B extensions as needed while awaiting visa bulletin advancement. Those with pending Adjustment of Status applications that are now backlogged can continue to renew EADs and Advance Parole documents as needed and may have opportunities to port employment. Consult with your Parker Gallini attorney if you have any questions about these options.

Ripple Effect of H-1B Layoffs

November 2022 saw a surge of over 50,000 tech worker layoffs in the United States, adding to a growing total across other industries as companies respond to inflation and economic uncertainty. While tech companies are typically among the highest users of the H-1B visa program, H-1B workers are sponsored in a wide variety of positions by companies in nearly every market sector.  

To transfer (or “port”) employment to a new employer and maintain status in the United States after a layoff, an H-1B worker has a grace period of up to 60 days to have a new employer’s H-1B petition filed on their behalf. If the H-1B worker’s existing I-94 expires prior to the 60-day mark, they will only have until the end of the I-94 validity to port their employment based on a new employer’s filed H-1B petition. Employers seeking to hire an H-1B worker who was recently laid off should also be mindful of the tight onboarding timeline required to keep H-1B status active.

When an H-1B employee is laid off, the sponsoring employer is required to offer to pay   the cost of reasonable return transportation to a laid-off H-1B worker’s home country. Sponsoring employers should also take steps to withdraw H-1B petitions and Labor Condition Applications for each laid-off H-1B worker. 

Layoffs may also have far-reaching consequences for companies and for sponsored workers who retain their jobs. In particular, in the context of PERM-based green card sponsorship, employers must comply with regulatory requirements to notify and consider all potentially qualified U.S. workers laid off within a six-month period preceding the filing of a PERM application. Potentially qualified U.S. workers includes laid-off U.S. workers who worked in the same geographic area of intended employment and in the same or a related occupation as the  PERM position being sponsored.  In practice, this leaves employers with the option of either delaying the filing of PERM applications for a minimum of six months following a layoff or contacting any laid-off U.S. workers who worked in the area of intended employment in the same or related occupation to invite them to apply for a sponsored PERM position.  Each option presents challenges in the PERM process, potentially resulting in significant delays or even the need to begin the PERM process over again.  In addition, multiple rounds of layoffs can force employers to put the PERM-based green card sponsorship process on hold company-wide for a period of time.  With current U.S. Dept. of Labor prevailing wage processing times averaging 8-10+ months, restarting or delaying a PERM process can pose serious risk to H-1B workers’ maintenance of status.

With ripple effects impacting ongoing nonimmigrant and immigrant sponsorship, layoffs are far from simple to navigate. Consult with your Parker Gallini attorney as soon as possible if your company is considering a workforce reduction.

Posted in Immigration Law

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