eb3algorithm
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Disclaimer: I take no responsibility for accuracy of information provided. Please use at your own risk. I am not an attorney.
The July 2005 Visa Bulletin showing the worldwide EB-3 category as unavailable is, in my opinion, based on an incorrect algorithm that assigns all available Q4 2005 EB-3 numbers to Schedule A.
My above assertion is based on the following assumption: the VO did not make the widely assumed mistake of releasing Q4 2005 numbers in the prior quarters. They have been doing the same math for many years now to go wrong this one time. In any event, even if for argument’s sake it is assumed that “the Employment Third and Third Other Worker categories have reached their annual limits” (i.e. 19% allotment for Q4 2005 has been erroneously used up in the prior quarters) still there will be unused EB-1 overflowing to EB-2 and unused EB-2 overflowing into EB-3 DURING Q4 2005. For this waterfall of unused numbers also to be “unavailable” to EB-3, EB-2 will have to have retrogressed for at least one country (i.e. EB-2 demand exceeds EB-2 supply), which is not the case. Remember, per country EB limits have been done away with under AC-21, thus creating a continuous linkage across quarters, countries, and EB categories.
The more likely scenario is the following: After the Real ID act was passed creating the 50,000 visas to be recaptured for Schedule A, the sub-algorithm that was created within EB-3 was as follows:
(i) if the applicant is Schedule A, and if EX category is current (which it is), then reserve a visa.
(ii) if reserved a visa in (i) above, then reduce that from current year’s EB-3 availability.
So suddenly, the EB-3 availability goes to 0!!!. Instead of retrogressing by 5, 10 or 15 years (i.e. demand exceeds supply) – it just becomes unavailable (i.e. total Schedule A demand is greater than allocated Q4 2005 EB-3 plus overflow Q4 2005 EB-3 availability, as created by that algorithm)
Of course, the correct algorithm would incorporate what has been publicly declared “when the regular EB-3 visa numbers are available for certain Schedule A EB-3 applicants, they will take out the numbers from the regular EB-3 numbers first.” Thus the correct algorithm should have been:
(a) for entire EB-3, determine the overall cut off date
(b) for any Schedule A applicant with priority date later than overall cut off, assign from EX quota.
The purpose of this analysis is to persuade some enterprising immigration attorney to file a request under Freedom of Information Act to be able to review the Visa Office algorithm. The amount of publicity such an action would lead to, and associated goodwill/new business generation potential, is tremendous.
The July 2005 Visa Bulletin showing the worldwide EB-3 category as unavailable is, in my opinion, based on an incorrect algorithm that assigns all available Q4 2005 EB-3 numbers to Schedule A.
My above assertion is based on the following assumption: the VO did not make the widely assumed mistake of releasing Q4 2005 numbers in the prior quarters. They have been doing the same math for many years now to go wrong this one time. In any event, even if for argument’s sake it is assumed that “the Employment Third and Third Other Worker categories have reached their annual limits” (i.e. 19% allotment for Q4 2005 has been erroneously used up in the prior quarters) still there will be unused EB-1 overflowing to EB-2 and unused EB-2 overflowing into EB-3 DURING Q4 2005. For this waterfall of unused numbers also to be “unavailable” to EB-3, EB-2 will have to have retrogressed for at least one country (i.e. EB-2 demand exceeds EB-2 supply), which is not the case. Remember, per country EB limits have been done away with under AC-21, thus creating a continuous linkage across quarters, countries, and EB categories.
The more likely scenario is the following: After the Real ID act was passed creating the 50,000 visas to be recaptured for Schedule A, the sub-algorithm that was created within EB-3 was as follows:
(i) if the applicant is Schedule A, and if EX category is current (which it is), then reserve a visa.
(ii) if reserved a visa in (i) above, then reduce that from current year’s EB-3 availability.
So suddenly, the EB-3 availability goes to 0!!!. Instead of retrogressing by 5, 10 or 15 years (i.e. demand exceeds supply) – it just becomes unavailable (i.e. total Schedule A demand is greater than allocated Q4 2005 EB-3 plus overflow Q4 2005 EB-3 availability, as created by that algorithm)
Of course, the correct algorithm would incorporate what has been publicly declared “when the regular EB-3 visa numbers are available for certain Schedule A EB-3 applicants, they will take out the numbers from the regular EB-3 numbers first.” Thus the correct algorithm should have been:
(a) for entire EB-3, determine the overall cut off date
(b) for any Schedule A applicant with priority date later than overall cut off, assign from EX quota.
The purpose of this analysis is to persuade some enterprising immigration attorney to file a request under Freedom of Information Act to be able to review the Visa Office algorithm. The amount of publicity such an action would lead to, and associated goodwill/new business generation potential, is tremendous.