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Statistics On Labor Certifications, L-1's And H-1B's

by Alan Lee, Esq.

PERM processing statistics that DOL released including figures for most of March 2012 showed that the rate of denied and withdrawn cases was 33.6% of all cases adjudicated in March. For the current fiscal year (FY-2012) from10/1/11-3/26/12, the rate of denied and withdrawn cases was 25%. The statistics are disturbing to labor certification practitioners as they tend to show a significantly higher rate of non-approvals than in the past. From FY-2008 to FY-2010, DOL approved 81.67% of labor certification applications filed. While the job outlook situation in the nation is still not bright, we urge DOL not to overreact as the economic outlook has been improving overall since last year.

The February 2012 National Foundation for American Policy analysis on L-1A and H-1B petition adjudications was enlightening that denial rates for H-1B petitions went from 11% in FY 2007 to 29% in FY 2009, 21 percent in FY 2010 and 17% in FY 2011. Also that requests for evidence rose from 4% in FY 2004 to 18% by FY 2007 to a high of 35% in FY 2009. For FY 2011, the rate was 26%. For L-1A intracompany transferee managers and executives, the denial rate increased from 8% in FY-2007 to 14% in FY 2011. Also requests for evidence increased from 4% in FY 2004 to 24% in FY 2007 and 51% in FY 2011. For L-1B intracompany transferee employees with specialized knowledge, the denial rate increased from 7% in FY 2007 to 22% in FY-2008, 26% in FY 2009, 22% in FY 2010 and 27% in FY 2011. Also requests for evidence increased from 17% in FY 2007 to 49% in FY 2009 and reached 63% in FY 2011.

With average filing fees of $825 for L-1 and $2,325 for H-1B petitions, employers should expect more considered and favorable adjudications from U.S.C.I.S. In 1989, the cost of filing either L-1 or H-1 petition was $50 and even as late as 2005 $185. While no one is asking for a return to those fees of yore, employers who pay the salaries of the agency's personnel should expect to receive more courtesies such as granting requests for extensions of time to respond and not have the agency overly rely upon and misinterpret ambiguous books (DOL's Occupational Outlook Handbook), constantly exhibit bias against small petitioning companies, or de facto change the standard of proof from preponderance of the evidence to clear and convincing evidence.

This article 2012 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.