a new problem for Eb categories, it is going nowhere

[antonioa77]

12/05/2004: USCIS May Abandon Concurrent I-140/EB-485 Filing Procedure

The concurrent I-140 and EB-485 filing system was considered a good idea and initially welcome by the immigrant community when it was announced. The system helped the employment-based green card applicants and their family members to obtain EAD and Advance Parole early. However, the two problems have developed and surfaced with the concurrent filing system afterwards. One is the predicament it has created in conjunction with the implementation of AC 21 180-day rule which allows the I-485 applicants to change employment after 180 days of I-485 filing. The issue was whether the I-485 applicants should be allowed to change employment even before the underlying I-140 petitions had been approved. Such interpretation presented a number of complicated political, policy, and legal issues. The USCIS thus adopted a policy that the change of employment would not be allowed until the I-140 was approved. Since then USCIS has witnessed the backlog in I-140 processings and many I-485 filers have been trapped not being able to change employment even in compelling circumstances such as layoffs. The problem was exaceperated by the announcement and partial implementation of "concurrent I-140/EB 485 adjudication policy." Now the EB-485 became a hostage of not only by I-140 approval precondition policy but also by delay of EB-485 adjudications. Pending EB-485 applications, I-140 have remained unadjudicated in some Service Centers indeed for a prolonged period of time. Some Service Centers followed the concurrent adjudication policy but other Service Centers refused to follow the concurrent adjudication policy. The concurrent filing system thus stirred uproars in the business community as well as the immigrant community. The second problem of the concurrent filing appears to be that it has failed to reduce the backlogs. Moreover, such problem is about to face exasperation due to the U.S. Department of Labor's attempt to commence electronic filing of the permanent labor certification applications (PERM) and backlog reduction procedures, which are expected to dump a huge I-140 and EB-485 concurrent filing load on the USCIS which has already been struggling with its own backlog problems. Politically, it is a nightmare in that the USCIS is under a tremendous stress and pressure from the White House to achieve the Bush's 6-month processing time goals in less than two years from now.
In order to deal with the foregoing "two predicaments," the USCIS is known to working on strategies on the two fronts. The first is the so-called interpretation of the new legal counsel of the USCIS who disagreed with the USCIS interpretation of AC 21 180-day rule. It is a well known information within the immigration lawyers community that the new legal counsel was planning to release his legal memorandum to the effect that the EB-485 applicants would be able to change employment even before approval of the I-140 petitions. The release of this memorandum has been delayed for the obvious reasons. The second is consideration of dropping altogether concurrent filing policy which will also kill the concurrent adjudication policy. Since abandonment of the concurrent filing policy will be able to resolve all the difficult and embarrassing political, legal, and policy problems, unconfirmed sources indicate that the USCIS is seriously considering to drop the concurrent filing procedure. Should this materialize, in the coming year, the employment immigration community is expected to be hit by the two lightening rods: One is retrogression of EB-3 visa numbers for Indians, Chinese, and Fillipinos, and the other is suspension of concurrent filing procedure. Ahhhh........., dizzy.................................................

source:www.immigration-law.com

this means guys that removing the backlog from labor certificate will create a catastrophe for i140 ANd i485. this means don't expect a green card for another 4, 5 yrs at least.the backlog is growing simply with limited resources.

 

[usnycus]

It's not good...

 

[nkm-oct23]

USCIS will not accept concurrent filing if a visa number is not likely to be available. Since USCIS makes the decision whether an application is EB2 or EB3, they will not be able to accept a concurrently filed 485 without knowing what category the EB will be in.
The news therefore simply follows the fact that EB numbers will retrogress.

 

[TheRealCanadian]

Is there a website to find out how DOS calculates the EB3 cutoff dates? is there any hope in waiting assuming EB3 retrogresses.

If you're not Indian, or Chinese or Filipino, what waiting?

And even if you are, the waits back in 1998 and 1999 were not interminable (around 2 years from PD) and AC21 greatly expanded the available visa numbers of previously oversubscribed countries.

I'd really wait until July 2005 before deciding how undesirable EB3 is going to be for Indians/Chinese.

 

[antonioa77]

If you're not Indian, or Chinese or Filipino, what waiting?

And even if you are, the waits back in 1998 and 1999 were not interminable (around 2 years from PD) and AC21 greatly expanded the available visa numbers of previously oversubscribed countries.

I'd really wait until July 2005 before deciding how undesirable EB3 is going to be for Indians/Chinese.

first of all, the case with 1998-99 is not applicable this time ,simply because in 98 ,there was no huge number of people waiting like now especially after DOL clears its backlog. the total quota for EB-3 category per year is around 40.000 visas and same for EB-2. whereas a flood of LC will come from DOL of around 200.000 to 300.000 adding to them their dependents, this means u r talking about 600.000 to 1 million applications dumped suddenly on USCIS, how will u pass 1 million in a quota that just allows around 80.000 visas a yr.
it is logical man. it is going nowhere for everybody not just for India china and filipine sooner or later. so now the 1998 case is not applicable anymore.

 

[TheRealCanadian]

the case with 1998-99 is not applicable this time ,simply because in 98 ,there was no huge number of people waiting like now especially after DOL clears its backlog.

How many people were waiting in 1998, versus now?

whereas a flood of LC will come from DOL of around 200.000 to 300.000 adding to them their dependents, this means u r talking about 600.000 to 1 million applications dumped suddenly on USCIS

You know this because? Which branch of DOLETA do you work for?

The first thing that the backlog elimination centers are doing is a very, very smart thing. They're basically sending a letter that says, "Does the LC position that you applied for over three years ago still exist? You have 45 days to respond." If even 20% of those survive that scrutiny, I'll be amazed. That's assuming they actually clear out the backlog, which they've been promising for years now.

it is logical man. it is going nowhere for everybody not just for India china and filipine sooner or later. so now the 1998 case is not applicable anymore.

Stuff doesn't change that quickly. The proprotion of Indians and Chinese EB applicants hasn't changed dramatically in the past five years. If any nationality other than the three in EB3 retrogresses, I'll be highly amazed. My guess is that by 4Q2005 the EB dates for the Big 3 will be moving forward.

 

[dcmetro22042]

TheRealCanadian: I agree with you on that BEC is good idea and so is sending out the letters...IF THEY DO IT RIGHT. But as always, they are not. Like Philly BEC. They haven't sent out the letters for 4 months now...giving one stupid reason or other. Latest was Printing and Software issues. If they do send them out this year, I would be happy coz that would mean they are atleast moving...

 

[antonioa77]

How many people were waiting in 1998, versus now?

around 40000 the backlog was i read it somewhere.


You know this because? Which branch of DOLETA do you work for?
u can search online and u will find it, the backlog at DOL at that time was around 40000.

The first thing that the backlog elimination centers are doing is a very, very smart thing. They're basically sending a letter that says, "Does the LC position that you applied for over three years ago still exist? You have 45 days to respond." If even 20% of those survive that scrutiny, I'll be amazed. That's assuming they actually clear out the backlog, which they've been promising for years now.

we all read in immigration sites that DOL expect that around 30 to 35 % of the appilcants r not there anymore. this means that if u have 300.000 backlogged appilcations , u will be left with around 180.000 to 200.000 still available.then let's say u have on average 2.5 dependents per applicant, this leaves u with 700.000 persons that require visa numbers out of a quota that just allow per yr around 80.000

Stuff doesn't change that quickly. The proprotion of Indians and Chinese EB applicants hasn't changed dramatically in the past five years. If any nationality other than the three in EB3 retrogresses, I'll be highly amazed. My guess is that by 4Q2005 the EB dates for the Big 3 will be moving forward.

read above.

 

[antonioa77]

if we go by your analysis we are looking at a wait of beyond 5 years for such EB3 cutoff candidates. how will DOS/DOL handle 7th year h1-b candidates? do they remain slaves to their employers? what if they get fired/laid off? surely senators cannot drown these poor immigrants, then again their pay checks come from these employers ummm....i guess it's better to give up the labor if in EB3 'n look for a new job or move on eh!

i'm going by the numbers given by the immigration community.and u can find them anywhere.i just put them together and concluded the above numbers. u r right it will be a nightmare to get a visa number. but if u go to history in 1998 for the category of other workers under EB-3 the waiting time was about 6 to 7 yrs to get a visa numbers.so it may happen if the congress doesn't change the quota.

 

[TheRealCanadian]

i'm going by the numbers given by the immigration community.and u can find them anywhere.

If the numbers are available "anywhere", then certainly it will not be difficult to provide me with a URL or two so I may investigate for myself. If you're right and I'm wrong, I'm happy to say so.

but if u go to history in 1998 for the category of other workers under EB-3 the waiting time was about 6 to 7 yrs to get a visa numbers.

Let me start off by providing March 1999: http://dosfan.lib.uic.edu/ERC/visa_bulletin/9903bulletin.html

Wait for EB3 china, 4 years. EB3 India, 3 years. Everyone else: NOTHING.

February 96, everything was current except EB3 Phillipines was just under two years.

Based on that track record, I'm not worried. Where on earth did you get the 6 or 7 year bit?????

 

[PradK]

Before congress can be encouraged/lobbied to increase the quota...

We should probably do some thing to make sure that...

1. Every year's quota is completely used by USCIS.

We know that it is not in the case of EB visas like many other categories like GC Lottery or Ayslum seekers.

2. Recapture the ones lost in last few years.

Couldn't find the link, but somewhere it is said that those lost are about 100,000 in last few years due to backlogs.

The situation we are in today is completely different to what was seen in 90's. If DOL is really be able to clear the backlog (and certify), I am sure the situation will be lot closer what antonioa's predicting. Unless Congress increases the quota, or atleast gives flexibility in terms of maintaining the employee-employer relationship even during LC and/or 140 along with other benefits to dependents (either by accepting I485 but not approve until visa numbers are available or other), its going to be a difficult journey ahead.

i'm going by the numbers given by the immigration community.and u can find them anywhere.i just put them together and concluded the above numbers. u r right it will be a nightmare to get a visa number. but if u go to history in 1998 for the category of other workers under EB-3 the waiting time was about 6 to 7 yrs to get a visa numbers.so it may happen if the congress doesn't change the quota.

 

[antonioa77]

If the numbers are available "anywhere", then certainly it will not be difficult to provide me with a URL or two so I may investigate for myself. If you're right and I'm wrong, I'm happy to say so.



Let me start off by providing March 1999: http://dosfan.lib.uic.edu/ERC/visa_bulletin/9903bulletin.html

Wait for EB3 china, 4 years. EB3 India, 3 years. Everyone else: NOTHING.

February 96, everything was current except EB3 Phillipines was just under two years.

Based on that track record, I'm not worried. Where on earth did you get the 6 or 7 year bit?????

if u refer to the same link that u gave me there the other workers section that shows a cut off of 1992, this category has a quota of 10000 a yr at that time and it was considered a part of EB-3.
u r too optimisitc just combine the numbers and u c that what i was telling u is correct.the numbers this time r much different than in the 90's , it is very simple. it is another completely different case.

 

[IN_LC_2002]

Does International Exective belong to EB1? If somehow we can take that route, is there visa limit? Thanks!

 

[TheRealCanadian]

if u refer to the same link that u gave me there the other workers section that shows a cut off of 1992, this category has a quota of 10000 a yr at that time and it was considered a part of EB-3.

Yes, but "other workers" is for people without a degree. That wouldn't include most people here that we consider EB3. Basically, at the time if you had a degree and weren't Indian or Chinese, no wait.

u r too optimisitc just combine the numbers and u c that what i was telling u is correct.the numbers this time r much different than in the 90's , it is very simple. it is another completely different case.

As I mentioned before, I do not wish to take your word for it, nor should you take mine without supporting evidence (which I provided). What information can you provide that supports your assertion that things are "much different" than they were five years ago?

 

[gc-despo]

Guys, relax. You are all posting these doomsday scenarios for EB3 of 3-7 year waiting period. If this really becomes true, the law of supply and demand will fix the problem. If EB3 really has upward of 3 year backlog before visa number becomes available to Indians and Chinese, then many EB3 workers will just spend their 6 years H1 and move back to India/China to pursue greener pastures there ( and arguably things are looking greener in both those countries right now). More likely than not, if EB3 folks start leaving USA, then business interests will pressure Congress to remove all these stupid numerical quotas and grant more people green cards. So, I dont think all these 3-7 year backlogs that you guys are predicting will come to pass. Congress will fix it at the last minute, time and again we have seen Congress pass progressive legislation regarding EB immigration at the behest of business interests.

 

[antonioa77]

Yes, but "other workers" is for people without a degree. That wouldn't include most people here that we consider EB3. Basically, at the time if you had a degree and weren't Indian or Chinese, no wait.



As I mentioned before, I do not wish to take your word for it, nor should you take mine without supporting evidence (which I provided). What information can you provide that supports your assertion that things are "much different" than they were five years ago?

from www.maggio-kattar.com
hope that this will convince u.

More on Waiting Lines for Employment-Based Immigrant Visas

We declared that “Lines Loom for Employment-Based Immigration Visas” in the September issue of Immigration News & Analysis, announcing anticipated backlogs in employment-based immigrant visa (“green card”) availability. Now, DOS prognosticators responsible for keeping track of and allocating immigrant visas under the preference system, have stated that waiting lines probably will develop as soon as January 2005 under the employment-based third preference for persons born in India, China, and the Philippines. We believe that lines in the first and second employment-based preferences will follow soon for those countries, and that it will not be too long before there are waiting lines for all three employment-based preferences, worldwide.


A foreign national establishes a place in line, or a priority date, for an employment-based immigrant visa with the filing of a labor certification application with the DOL, or with the filing of an immigrant visa petition with the CIS. There are a limited number of immigrant visas available each fiscal year under each preference and for each country. An increased demand for immigrant visas coupled with faster processing of green card applications by CIS, is leading to a backlog in employment-based immigrant visas for the first time in many years.

 

[gc-despo]

Trade and Business dynamics have changed in the last couple of years. It is no longer centered around the United States, it's gone global.

Ray, that is exactly my point. Since the US is no longer the only game in town for hi-tech workers, businesses here need to be competetive with other emerging economies. So, they will have to sweeten up immigration policies to get enough workers for companies here. I work in Silicon Valley, and all around me, the workforce is completely dominated by foriegners. If Congress lets skilled worker immigration die, Silicon Valley and other tech centers will die too - there are just not enough qualified Americans to step in, nor are enough Americans getting advanced degrees or training to fill the gap in the future. I am confident Congress will act to fix this backlog problem if it really becomes serious.

 

[PradK]

...

TheRealCanadian,

Is something like this you are looking for?

http://www.aila.org/contentViewer.aspx?bc=9,3232,3124,6306

Below is directly from the link/doc above

AILA commends the Department for its commitment to implement a workable plan to reduce the national backlog of approximately 300,000 applications for alien labor certification.

And, let us not try to look at this as an issue only for people from those x, y and z countries, since if you look at the % of people that these countries represent in the EB immigration, it is obvious that a very large pool of the EB applicants are affected.

Now, AC21 does lift per country limits, but it is clear that even though you account for full visas, we are looking at a long wait.

Yes, but "other workers" is for people without a degree. That wouldn't include most people here that we consider EB3. Basically, at the time if you had a degree and weren't Indian or Chinese, no wait.

As I mentioned before, I do not wish to take your word for it, nor should you take mine without supporting evidence (which I provided). What information can you provide that supports your assertion that things are "much different" than they were five years ago?

 

[PradK]

Is this good news for genuine applicants...?

But the problem may not alleviate unless congress moves now to create a seperate path for 245(i) applicants...which is long due any way?

DOL OIG report on 245(i) cases

http://www.oig.dol.gov/public/reports/oa/2004/06-04-004-03-321.pdf

STATUS
WHAT OIG FOUND
Our audit found:
• a backlog in processing FLC applications
(325,000 as of May 2004) due to a 450
percent increase in applications for
permanent labor certifications from Fiscal
Year 2000 to 2001;
• a majority of aliens did not have legal
status to work (84 percent) or be (67
percent) in the U.S. (72 percent);
• most (67 percent) aliens were already
working for the petitioning employer at
the time of application, including nearly 28
percent who worked for the employer for
5 or more years prior to application; and
• an estimated 69 percent of the 214,406
applications filed from January 1 through
April 30, 2001, and not subsequently
canceled or withdrawn, were either
misrepresented, incomplete, or both.

 

[TheRealCanadian]

Thanks everyone for your posts. I think the more evidence we all bring up helps everyone understand the process better. We should all strive to develop an attitude of healthy skepticism. That's my goal here as well. Let me state two observations: First, I still think you're overly worried, and second all you've provided me are links by an attorney engaged in some idle speculation and a press release from AILA about elimination of the backlog.

In return, I have something you might wish to look at. It's a statement from the Inspector General of the Department of Labor.

http://www.oig.dol.gov/doltopchall04.pdf

There's a section on page 3 of the document called Problems with the Labor Certification process where they refer to the 315,000 case backlog. They make some interesting observations:

84% of the alien beneficiaries did not have work authorization;
72% of the alien beneficiaries were out of status;
69% of the applications were either "misrepresented or incomplete"

I don't know how many EB2 qualified folks are in that 84% or 72% number, or even how many EB3 people (don't forget that EB1 needs no LC at all, so the backlog cannot affect this category). Not too many. And that's assuming that these employers have even maintained their interest in the alien, up to almost four years later.

Let's assume hypothetically that all of the 16% with work authorization are valid EB2/EB3 folks, and that none of those folks have been laid off waiting for the LC to be approved. That's a huge if. Even so, 16% of 315,000 is just 50,400. Add two dependents per alien, and you're still looking at just a year's worth of EB numbers. Yes, you might see some per-country limits kicking in for India or China, but that's it.

This backlog really doesn't keep me up at night. Any thoughts? Have I interpreted these numbers wrong?