EB-2 overflow, how is it handled, will decide how fast you get your GC

A

akela

Registered Users (C)
I have a question, since Rest of world (Row) is current for EB-2 and suppose it remains like that till end of fiscal year 2006 (USCIS has never allotted more than 30,000 visas to ROW for EB-2, average has been 18,000,), where would extra EB-2 visas not utilized by Rest of World (ROW) go. Will that go to oversubscribed countries in the EB-2 category (India or China) or will it go to EB-3 where it will satisfy non-over subscribed countries in that category.

This is an important question, this would determine how fast we will get our GC.
The relevant law section I believe is 8USC 1152(a)(5)(A), but not being a lawyer I had a hard time reading through it.

Can anyone answer this in a definative way. Please dont give opinions (as there are two answers to it, yes and no and guessing them adds no value). Any reasoned argument is welcome. If you know your lawyer and can call him, that should help.
I called my lawyer (fdbl), they promosed to get back, haven't yet. I called Mr. Khanna offfice (and emailed), they do not know the answer.

Thanks in advance.
 
sorry i have not read the law.....but still i would like to comment....this is just from what i have heard on this forum...

overflow usually goes to a oversubscribed country.....and i dont think it gets applied to a particular category (if that was the case then there will never be a retrogression for EB1-india/china........since EB1 is always surplus).

i think they just try to distribute it using the 28% law across all categories...
 
This logic is wrong. EB-1 for India has never retrogressed except for this year. We will all know that in the last quarter.

In June 2005, when they retrogressed all of EB-3 and let EB-2 for India/China continue. I am sure that by june 2005 3700 Indians (along with there family members) would have got GC in EB-2. They let Indians/Chinese continue to get GC even though ROW of EB-3 was stopped. This suggest that extra visa do flow firsto over subscribed countries in that category. Now did USCIS do that because it's the law (and hence will be followed in the future) or because it was a mistake on their part.

rgds
 
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Yes it should go to India/china

akela said:
This logic is wrong. EB-1 for India has never retrogressed except for this year. We will all know that in the last quarter.

In June 2005, when they retrogressed all of EB-3 and let EB-2 for India/China continue. I am sure that by june 2005 3700 Indians (along with there family members) would have got GC in EB-2. They let Indians/Chinese continue to get GC even though ROW of EB-3 was stopped. This suggest that extra visa do flow firsto over subscribed countries in that category. Now did USCIS do that because it's the law (and hence will be followed in the future) or because it was a mistake on their part.

rgds
Click to expand...
But the question is.. what's the ratio is it 50:50 between India/China?
I am EB2 India September, waiting for 485...
 
EB2 Interview and AC21 ???

Since this topic is about EB2. I have a question too.

My case was transferred to Local Office. My wife and myself attended the interview and due to lack of Visa Numbers they did not approve our case. But they did mention that once the visa number becomes available we will be mailed our cards.

Now I got a really good break in my career. All these time I was not able to get into higher positions inspite of my B.Tech from IIT and MBA from top-10 schools.

Now my question is

(1) Should I file AC21 when I join the new company in January? Technically they processed my I485 but fall short of Visa Numbers. I140 is approved in May 2005 and my PD is November 2004.

Any thoughts / suggestions?

Rayudu
 
EB2_091505, may I know how you are so certain than it will go to India/china (like some pub or some reference or did your lawyer say that). I am sure it would be 50-50 (what other criteria would they use anyway. or maye within these two countries the earlier goes first irrespective of nationality). bOTTOMLINE, anyway a good thing...but do we know for sure.

gcrayudu, I am not a lawyer, consult one, but you can take benifit of AC21, 485 need not be approved, only applied 6 months ago.
 
NIW and EB2 LC

I have seen many people write in their question EB1 and NIW. I am not able to understand how NIW is processes compared to EB1 and EB2 LC. Is NIW given preference in I-485 processing over EB2 LC?

Can someone please shade light?

Shankara
NIW 091505 TSC
 
I think when it comes to processing I-485 all are given the same priority......except that due to visa unavailibility.......they are giving preference according to categories...

NIW helps in faster I-140 processing.....and it does not require LC nor employer sponsorship...
 
Akela,

I am intrigued by your question, so I tried doing some analysis:

This is what one can see from the law:

1. It does say that unused EB-1 go to EB-2, unused EB-2 go to EB-3.

2. The 7% per country limit applies to EB (and family based) category on the whole, and not for EB-1, EB-2, EB-3.

3. ON the rules for exceeding the 7% limit, it says if enough applicants
for not available for EB (or family based), then a particular country can exceed the limit. It does not say this for EB-1, or EB-2 ...

4. If a particular country does exceed the limit for EB, the visas for that country are further divided in the same ratio between different priority levels, i.e., 1:1:1 between EB-1, EB-2, and EB-3.

So, reading between all of this, it does seem that if EB-3 worldwide is retrogressed, no country can get more than 7% of the 140,000 EB limit.
Moreover, even if say India were to get 10% of the EB limit, it will not necessarily end retrogression for EB-1 and EB-2, as these will additional visas will further get divided between EB-1, EB-2, and EB-3.

Let me know if you have read anything that contradicts my analysis here ....
 
Allocation hierarchy exists but this may not the correct clause/ law for redistributi

I think the allocation hierarchy is clear. However, the clause is silent on redistribution of employment based visas - they only talk about redistribution for diversity visas. some other law/ clause may be at play.

Also, a related question I have is what happens to the DIVERSITY visas, since they have been abolished??


GCStrat :)
================================================

I have reproduced that section below (Summary now). I cannot post the entire section as it is too long. do a google search with that section - you will find the details.:

Summary


Preference allocation for employment-based immigrants
Aliens subject to the worldwide level specified in section 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows:
(1) Priority workers
(A) Aliens with extraordinary ability
(B) Outstanding professors and researchers
(C) Certain multinational executives and managers

(2) Aliens who are members of the professions holding advanced
degrees or aliens of exceptional ability
(A) In general
(B) Waiver of job offer
(i) National interest waiver
(ii) Physicians working in shortage areas or veterans
facilities

(3) Skilled workers, professionals, and other workers
(A) In general
(i) Skilled workers
(ii) Professionals
(iii) Other workers

============================================
============================================
 
what about the 28.6% limit

Dear gagar

What about the 28.6% limit to various categories? Can that be breached?

Regards,
GCStrat :)
 
""What about the 28.6% limit to various categories? Can that be breached?"""

Yes, it happens all the time. EB-1 and EB-2 routinely get less than 28.6%, because of limited demand. This results in much larger number of EB-3 visas than the 28.6% limit.
 
Gagar,
what you say seams right (though avery bad news for Indians in all category, more so EB-1 and EB-2). Yet, is there a definite law, clause etc. that might answer this question. If not then what you say is probably the law and it's ain't good.
Second point is that as with any legislative law, it is not spelled in black and white (but in essence, the spirit of the law is implemented). During implementation, USCIS has lots of leaway and can make rules that make huge difference.

If what you say is right then there is a very interesting conclusion, for all Indians waiting in EB-1,2 AND 3 (except for the priority date), there speed of processing is same, no advantage of EB-2 over EB-3 except for priority date.
rgds,
 
"""Gagar,
what you say seams right (though avery bad news for Indians in all category, more so EB-1 and EB-2). """"

Well, I am sorry to be the bearer of bad news :-(

"""Yet, is there a definite law, clause etc. that might answer this question. If not then what you say is probably the law and it's ain't good. """"

Obviously, you or I haven't found one. So, probably there isn't anything more specific written there. But, it seemed to be quite clear that moving visa numbers from EB-1 to EB-2 and from EB-2 to EB-3 takes priority over exceeding the per country limit.


""""Second point is that as with any legislative law, it is not spelled in black and white (but in essence, the spirit of the law is implemented). During implementation, USCIS has lots of leaway and can make rules that make huge difference."""""

Well, there seems to be quite a bit which is unclear. For example, if they
exceed 7% for indians, they do say that the original ratio between Eb-1, Eb-2, and Eb-3 will be maintained. However, if Indians are only getting 7% of the entire EB numbers, there doesn't seem to be anything to say how this limit
will be maintained for EB-1, EB-2, or EB-3. One possibility is to allocate all Indian EB-1, then EB-2, and this will mean probably that 7% limit out of 140,000 is already met. Clearly, they are not doing this - otherwise, EB-1 won't be retrogressed. But, there are still at least two other possibilities. They could give 7% of 40,000 each for EB-1, EB-2, and EB-3 to Indians. Or, they could give out 7% of the actual number of EB-1, EB-2, and EB-3 actually granted (since EB-1 and EB-2 never reach 40,000, and EB-3 actually awarded are much more than 40,000). The first case is more favorable for EB-1 and EB-2, and will probably mean very slow movement for EB-3 for indians.

Furthermore, the whole priority date is an estimation game -- they see how much demand might be out there and establish these. As their estimates may not be accurate, how the priority dates move is not very representative of actual number of visas being granted for each country / priority level.
 
EB2 for 'other countries'

anyone knows or have any clue about availability of visa numbers for EB2 'other countries' for the rest of 2006 ? :confused:
i've just submitted my I-140 & 485...
 
To Akela and others

TO Akela and others:

I understand what you were saying but please think of this scenario:

If a person is stamped on the passport (NOT I551) But " Wrote PENDING VISA AVAILABILITY" then what is there to do AC21? Where the I 485 is processed and completed the formal process and just wiating for the Physical Cards which is dependent on the Visa Availabiltiy.

Any thoughts??
 
EB2 for 'other countries'

anyone knows or have any clue about availability of visa numbers for EB2 'other countries' for the rest of 2006 ? :confused:
i've just submitted my I-140 & 485...
 
gcrayudu,

I am not a lawyer so please use this advice at your risk. The only thing that I can think is, this is a new scenerio, there is no existing law that would cover this (maybe there is one law, but then you have to find it, it wont be in common kNowledge). The best way, you/your lawyer write to USCIS to get a definite answer.

rgds,
a
 
Redistribution is part of AC21 Act

while searching on google, I found the folowing statement on an immigration lawyers website

"...enactment of provisions for redistribution of unused immigrant visa numbers as part of the American Competitiveness in the Twenty-First Century Act (“AC21”)..."

We should search clauses / sections in this ACT to check if it indicates how the unused visas should be redistributed

Regards
GCStrat :)
 
Slade245 said:
anyone knows or have any clue about availability of visa numbers for EB2 'other countries' for the rest of 2006 ? :confused:
i've just submitted my I-140 & 485...
Click to expand...
Previous visa buletin predicts it will be retro in the second half of FY06 (which is from Apr 1 - Sept 30/06).
I doubt your I485 will be clear before that but hope for the best. What is your PD? Not 2005 right :)
 
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