For the second year in a row, the USCIS has not reached the H-1b cap during the first week of filings. The USCIS has reported today that it has received only 13,500 H-1b petitions counted toward the 65,000 regular cap and approximately 5,600 petitions counted toward the 20,000 U.S. advanced degree cap for individuals with a U.S. Master’s degree or higher. Due to the low number of H-1b filings, the USCIS will be able to utilize the premium processing system, specifically the 15-day premium processing clock will began on April 7 for all cases filed for premium processing during the initial April 1-7 window. For any cases filed under premium processing going forward, the 15-day clock will begin on the date the petition is received at USCIS.

The low number of H-1b filings shows that H-1b petitions are market driven. When the economy is booming, there are a lot of H-1b petitions filed because companies are hiring. However, when the economy is down, employers are able to find workers within the economy itself – U.S. workers, etc.

The low number of H-1b filings also shows that there are some better days ahead for foreign nationals who are filing for permanent residence. The low number of H-1b petitions has a ripple effect: less filings means fewer foreign nationals obtaining jobs in the U.S. which, in turn, means less permanent residence petitions filed. Recent statistics from the Department of Labor and USCIS bear this out. Both agencies have released reports in the last year confirming that the number of petitions for permanent residence is lower than in years past. In fact, the Department of Labor has increased their processing time significantly on PERM application. They are now working on PERM filings (non-audited) that were filed in September 2009. Granted, that’s a far way from their estimated processing time of 45-90 days when they implemented PERM in March 2005, but significantly faster than what they have actually been processing the last two years. While the Department of Labor will credit some of the faster time to “increased efficiencies” or other internal improvements, in fact a large part of it is due to a lower volume of case filings.

So what does this mean? I believe we will reach a time a few years from now where immigrant cases will move much more quickly. The current backlog that we have in visa numbers (refer to April Visa Bulletin from the Department of State) is due to various factors including:

(1) a booming economy (unemployment rate was low, below 6% from 2001 to 2007 despite a growth in population from 285,039,803 to 301,290,332 from 2001 to 2007);

(2) changes in the law (an influx of 245i cases which were filed in late 2000 and early 2001 but not felt for several years because labor certification cases were stuck at processing centers of Department of Labor for years and finally started moving through the system when PERM was implemented in 2005);

(3) revamping of labor certification process in March 2005 (provided much quicker processing times, albeit for only the first two years, which resulted in an influx of I-140 and I-485 filings in 2005-2007);

(4) changes in immigration processing (the USCIS backlog reduction effort to process I-485 “visa available” cases within 6 months coupled with the influx of I-485 case filings in the summer of 2007 when visa numbers were current).

However, since 2008, the number of filings at all stages (labor certification, I-140, and I-485) has decreased. That means when the 2008-2010 cases come up for processing, there will not be as many cases (therefore, not consuming as many visa numbers). Since visa retrogression is an issue of supply and demand, the lower demand for visa numbers in the future will benefit those who have filed cases in the last two years or file in the near future. In essence, the time is ripe for a permanent resident filing now. Just like the stock market, it’s better to get in when the numbers are low.