Interesting-Please Read and Comment...

nalasra

Registered Users (C)
The October 2005 Visa Bulletin Warrants An Amendment to INA 245(a)(3)
by Dinesh Shenoy


The October 2005 Visa Bulletin recently released [1] comes as a shock to every employment-based immigrant. Given the even further retrogressions on this Bulletin over the June 2005 bulletin (and ignoring for the moment the three months of temporary skilled/professional EB-3 unavailability across the board), Congress should consider repealing or amending INA § 245(a)(3) with respect to employment-based immigrants.

INA 245(a)(3) says that an I-485 application cannot be filed unless "an immigrant visa number is immediately available to [the worker] at the time his [or her] application is filed."

The appearance of cut-off dates for Indian and Chinese EB-1 and EB-2 workers plus across-the-board cut-offs for EB-3 aliens of all countries means that it might now be several more years before workers in these categories can file an I-485 application.

That there are cut-off dates on Visa Bulletins[2] is not in itself something to complain too much about; cut-off dates are a function of the fact that America does not have unlimited immigration. The need for cut-off dates in deciding who gets a green card this month (and who has to wait) is the result of the natural operation of the numerical limit created by INA § 201(d) (total 140,000 EB visa numbers per fiscal year). In the family arena, cut-off dates and slow forward movement is an accepted fact of life. However, the fact that the Employment-Based chart has gone from showing "current" visa number availability for the past 3+ years (June 2001 to December 2004) to now suddenly having severely backlogged cut-off dates appear in the span of less than one year is not "natural" (compare the December 2004 Bulletin to the upcoming October 2005 Bulletin).

Instead, this sudden retrogression is the result of USCIS' backlog of employment-based I-485s being allowed to build up for several years during which approvals of such 485s ground to a near halt, followed by the much-anticipated (and welcome) backlog elimination plan. [3] It's great that USCIS is now suddenly cranking out I-485 approvals. Getting all these 485 approvals recently feels really good, but too much of a good thing is . . . well, not good. The long dry-spell of 485 approvals followed by the recent flood of 485 approvals is what is causing these extreme cut-off dates to suddenly appear with little warning. [4] If for the past four-to-five years employment-based I-485s were approved at a steady rate, we would have had Visa Bulletins with always some amount of backlog. But it would have been a less severe backlog coming all at once; there would have been a more orderly advancement of the cut-off dates. Suddenly an EB-3 Russian Software Engineer, who a few months ago could anticipate being able to file a concurrent 140/485 any day now once his "in process" pending PERM Labor Cert is approved, now with little warning faces waiting another 3-4 years before being able to file his I-485.

And the inability to file a 485 sooner rather than later is not mere inconvenience. It's more than H-4 spouses and children being delayed several years on being able to finally get a Social Security Number (which requires an EAD card first). It means that the protection for the whole family against lay-off available under the "portability" rule contained in INA § 204(j) remains out of reach. If you have an I-140 approved as an EB-3 petition but you are facing a wait of several years to even file a 485, you are in precarious position. Even if your savvy immigration lawyer assures you that you can get a special 3-year extension of H-1B status beyond your 6-year limit under the as-of-yet-not-often-invoked AC21 § 104(c) (with memos and liaison notes he's just itching to use for your H-1B extension), that doesn't quell your worries.

For instance, when you are in year-8 of H-1B status and still have not filed your I-485 and then your company downsizes and lays you off, that's it, that's the end of the line. You burned up all your H-1B time in hopes you could get your 485 filed before your job was eliminated. If you had filed your 485 like your friend in the next cube over from you who just happened to have his PERM Labor Cert approved a few weeks ago (while yours is still "in process"), your friend who was able to get his I-485 in before the EB-3 category backlogged into the Stone Age, you'd be able to port like he is going to once he finds another job. But you didn't get your I-485 filed and so now you will be going back home, maybe never to return.

I appreciate the enormous task that faces USCIS to adjudicate millions of benefits applications ever year. I think that Congress appreciated this as well when it passed AC21. The whole point of the "I-140 portability provision" (INA § 204(j)) was to acknowledge that it took too long for employment-based 485s to be approved and that foreign workers should not lose their ability to get a green card if they were going to be able to go on and fill another position in the same industry and make the same contribution to the economy and society generally. But portability never even comes into play if you never get to file your I-485 in the first place.

Therefore, I propose that Congress amend INA § 245(a)(3) to add the following underlined language so that the provision reads as follows:

" ... and (3) except in the case of an alien who is the beneficiary of a petition filed under paragraphs (1), (2) or (3) of section 1153(b) of this title, an immigrant visa is immediately available to him at the time his application is filed."
With this revised language, an I-140 beneficiary would be able to file his or her I-485 once an I-140 is filed [5], even if they know it will be many years before their priority date is reached. They would still have to wait for their turn to actually receive Permanent Residence in priority-date order.[6] But the situation would be more akin to that of asylees at the time when there was a cap on asylee adjustments.[7] Congress still gets to keep a limit on how many aliens actually got Permanent Residence based on employment, but in the meantime aliens who had demonstrated they had the right qualifications to be in the United States and are not taking a job away from a minimally qualified US worker will have more stability, greater peace of mind and will be able to get important interim benefits for derivatives while they wait for their priority date to be reached.
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1Available online at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
2 INA § 203(e)(3); 8 USC § 1153(e)(3).
3 See "USCIS Announces Backlog Elimination Update", News Release dated March 22, 2005. Available online at http://uscis.gov/graphics/aboutus/repsstudies/backlog.htm USCIS noted that the overall backlog of all immigration benefits applications (including I-485 applications for Permanent Residence) had reached a high of 3.8 million in January 2004, and that the backlog was reduced to 1.5 million by September 30, 2004.
4The December 2004 Visa Bulletin stated "In recent months [DOS has] been experiencing very heavy applicant demand in the Employment categories as the Citizenship and Immigration Service has begun to address their backlog of [I-485] cases." In the January 2005 Visa Bulletin, DOS offered a more detailed explanation of the reason for re-establishing EB cut-off dates and predicting future unavailability, citing a combination of the effect of the "recapture" provisions in AC21 and the development of the I-485 backlog at USCIS. Subsequent Bulletins up to the present time have repeatedly cited the continuing heavy demand of visa numbers due to USCIS clearing up its I-485 backlog. See footnote 1, supra.
5 This proposed amendment to the Act would supercede (and require the rewriting of) 8 CFR § 245.1(g)(1) & § 245.2(a)(2)(i)(A), which together are commonly referred to as the "concurrent filing rule."
6 I.e., this amendment would in no way change the basic rule of fairness in INA § 203(e)(1) that family-based and employment-based immigrant visas "shall be issued . . . in the order in which a petition in (sic) behalf of each such immigrant is filed with [DHS.]"
7 See INA § 209(b); 8 USC § 1159(b) (2004), recently amended by § 101(g) of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (eliminating the 10,000 cap on asylee adjustments per fiscal year).


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About The Author

Dinesh Shenoy is an associate attorney with Ingber & Aronson PA in Minneapolis, practicing exclusively in the field of immigration law with an emphasis on employment-based cases, family-based cases and advising criminal defense counsel on the immigration consequences of crimes. He has chaired a 3-part teleconference on Adjustment of Status for ILW.com and has published articles for the American Immigration Lawyers Association (AILA) on the "concurrent filing rule", H-1B extensions of status under the American Competitiveness in the 21st Century Act ("AC21"), and H-1Bs for Business Professionals. In 2003 he won the AILA Mentor Award for "Outstanding Efforts and Excellent Counsel to Immigration Attorneys By Providing Mentoring Assistance." He has spoken on employment-based immigration at the AILA Annual Conferences in 2003, 2004, and 2005 and spoke about the "Child Status Protection Act" on a nationwide teleconference shortly after the CSPA was enacted, as well as numerous presentations to general audiences in Minnesota. He served on AILA's 2004-05 Liaison Committee to the Nebraska Service Center (NSC) of the US Citizenship and Immigration Services (USCIS).
 

richshi

Registered Users (C)
Very good opinion, and very practical

How can this be conveyed to the Congress? By immigrants rights group?

Basic point is: let people file I140/I485 concurrently thus give people interim benefits.
 

neha_wal

Registered Users (C)
Excellent

This is an excellent piece of wor. This should certainly be conveyed to the lawmakers. I guess, something should be done for the portability of the whole process at th Labor cert. itself.
 

optimistguy

Registered Users (C)
This is the best bet, sorry only hope we have! Thank you Anil, for putting it up so clearly citing all the legal terms.

Friends, I urge all of us should act this time - we cannot afford to just wait and pray this time. We should all write to senators, meet local congressmen personally and if needed gather in Washington DC and tell the nation our plight. We, the people who waited for 4 years for LC, watching somany get through ahead of us using options like substituted labor and filing from remote states using phony addresses - now we find ourselves on the brink of going out of status anytime. After waiting for 4 years, if you get laid off for any reason, you get nothing - you cant even stay here for another day because you completed 6 years already. This is gross injustice. We have to bring this to the attention of the nation. Please, Anil, since you are an experienced lawyer could you please take a lead to formulate a strategy. I live in VA and I can do whatever it takes to mobilize people in the washington area. Everyone, please respond - let us act with a plan this time!
 

septa

Registered Users (C)
I live in NJ. I am ready , for what it needs. They are many guys like me waiting to get together to do something abt it. Plz make one Seperate Thread or something so that this traking mail does not split into to multiple.
 

OKKADU_2005

Registered Users (C)
Let us fight against this new retrogression...

:mad: All, We have to do something in writing letters / taking help from reputed immigration attorney's who work for USCIS or close to dealing with these immigration laws / form group within us and fight agains USCIS.

This is totally ridiculous,bizarre situation,nonsensical,preposterous,outrageously change in the rule.Why the hell did they moved the PD from 2002 to Jan 01 1998.Are they USCIS nuts.

ATTORNEYS / INDIAN IMMIGRATION LAWERS, PLEASE HELP US IN FIGHTING WITH THIS ISSUE.DO SOMETHING TO SAVE ALL OF US HERE.
 

infostarved

Registered Users (C)
Nice article

Great article.. I think it hits the nail on the head when it says..

"The purpose of employment-based immigration is to bring people's skills to America, not their culture or heritage"

Culture and heritage is what they have the diversity visa category for.
 

berkeleybee

Registered Users (C)
Another Article from Dinesh Shenoy in 2001: Per Country Limits Unfair

[Please not that this article is from 2001, so what he is says now, he means 2001]

Asian Pages

April 14, 2001

HEADLINE: Employment-Based Per-Country Limits Are Unfair


BYLINE: Shenoy, Dinesh


BODY:

Employment-Based Per-Country Limits Are Unfair

Anyone who is trying to immigrate to America (to become a permanent resident or "green card" holder) is probably familiar with the "per-country" limits. For every country in the world, no more than 9,800 of its national canget a green card on the basis of employment in a given year. If you are a Chinese national who is number 9,801 in line behind 9,800 other Chinese nationals who have applied for a green card this year, you have to wait until next year to get your green card.

The per-country limits on employment- based green cards make absolutely no sense. Employment-based immigrants come to the U.S. because they bring job skills and labor power that America wants and needs. Many of the world's most prominent scientists and researchers come to stay and work in the U.S. because they have "extraordinary ability" or are "outstanding researchers." Others come because their skills and abilities "will substantially benefit the United States" and are "In the national interest." Many, many more come because there is a critical shortage of qualified workers in the high-tech industry - by filling this gap, these workers allow American companies to remain competitive and avoid the need to close their operations in the U.S. and move overseas to where qualified workers are available in greater supply. In each of these cases, the foreign person is here because America has a need for their job skills.

But the accident of a person's birth could determine whether or not they get a green card this year, or face a wait a several years because of the per-country limits. Take an example from our office: We have two computer systems analysts doing the same job at the same company. The job requires a Bachelor's degree in Computer Science that each worker has. One was born in India, one was born in Pakistan. Both came as temporary workers in the H-1B category. After they were here for a little while, with their employer's help they qualified to apply for their green cards. The Pakistani worker found that he could file his green card application immediately. The Indian worker found that he had to wait three years before he could file his.

The reason? The per-country limits. As many in the field of immigration would say, the per-country limits allow Pakistan and India to each "send" only 9,800 immigrants on the basis of employment. But there is no formal procedure in which a foreign government "sends" people here to become permanent residents. Instead, these two systems analysts individually and independently applied for their jobs and were hired by the same U.S. employer. Each is seeking to permanently stay in the U.S. because of his own individual job skills, not because of what country he was born in.

The problem with equal per-country limits is that not all countries have the same size population. China and India are the largest countries in the world, and in each country a segment of the population is highly educated. There are many more Chinese and Indian workers qualified to work in the high-tech industry than there are workers from Pakistan, Vietnam, Japan, or Iceland. Why should Indians and Chinese be limited to 9,800 green cards a year? In terms of their job skills, workers in any given employment-based preference category are equally qualified. But because of the accident of their birth, Indians and Chinese workers have been unfairly subject to backlogs of up to three years longer than workers from any other country.

Fortunately, Congress has taken some very recent steps that should reduce the backlog for the Chinese and Indian workers somewhat. In October 2000, Congress passed the American Competitiveness in the Twenty-First Century Act," also referred to as "AC21." Among the many favorable provisions of AC21 is one that allows the "recapture" of employment-based immigrant visa numbers. What this means is that if at the end of the year there are left-over green cards in the employment-based categories which nationals of countries like Nigeria and Germany have not used up, these green cards will be redistributed to the Indians and Chinese.

In the past few months, this has resulted in some reduction of the backlogs for green cards for Chinese and Indian workers. However, at least in the employment-based "third preference" category, Chinese workers still face a backlog of almost 2 years, and Indians still face a backlog of almost 3 years. Although these backlogs are expected to improve further in the coming months, it does not change the fact that the per-country limits for employment- based immigrants simply make no sense. This is particularly true considering that the per-country limits did not used to exist! They were added to the law in 1965 under the theory that it was more "fair" to people from around the world - French and Colombians and Senegalese people get as much a right to be in America as Indians and Chinese do. In fact, the opposite is true. To the Colombian or French national, the per-country limit says, "We'll take your skills today and in exchange you can apply for your green card today." But to the Indian or Chinese national it says, "We'll take your skills today, but unlike your French and Pakistani friends, you have to sit tight and wait a few extra years before you can apply for your green card."

The purpose of employment-based immigration is to bring people's skills to America, not their culture or heritage. The per-country limits in the context of employment-based immigration should be eliminated entirely, and all foreigners should be allowed to qualify for employment-based green cards based only their individual merit. That would be truly fair, and that kind of fairness is the American way.

Article copyright Asian Pages.
.
 

pvr726

Registered Users (C)
Makes perfect sense. Best action plan..

Before the initial enthusiasm steams out as is often the case with Indians, we'd all like to know how to build a mailing list and if required, a signature campaign to move this motion into the Congress/Senate as required.

Dinesh -- please advise how to contact you or whoever is planning to be the torch bearer for this movement.

-Ram
 

GCin-waitng

Registered Users (C)
clarification please!

Who are:

* Schedule A Workers (Only Nurses and Physical therapists? or also people with exceptional ability in the arts, sciences?--who are they? )
* EB4
* EB5
*Targeted Employment Areas/Regional Centers
 
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nato

Registered Users (C)
that would be non-immigrants right group ;-)

richshi said:
How can this be conveyed to the Congress? By immigrants rights group?

Basic point is: let people file I140/I485 concurrently thus give people interim benefits.
 

priyargc

Registered Users (C)
Retrogration is a simple theory of supply (availibility of visa number) and Demand(Valid applications in this category).
take the example of EB2 for Indian Category.
USCIS has reviewed situation on August 10, 2005 and found supply demand is under control and decalare EB2 category current for September 2005. logically, If demand was more, they would have retrograte this category in September only. They didn't means demand and supply was balance as per their criteria.

Now they reviewed situation on September 9, 2005 and decalared retrogration to Nov. 1999. This means; they recieved more application between Aug. 10 to Sept. 9, which created Demand > Supply. Technically in case of retrogration they need to give oldest priority date, which has pending case. May be they have very few cases that old.
Now guess, how many application they might have recieved between Aug 9 to Sept 10? 2800? 5600? 8400?

If they recieved 2800 applications, after one year it will be current again (because yearly EB2 quota for indian is 2800). If it was 5600, it will take two years to be Current again.

The persons who have already filed I 485, need not to be worry much.

Please comment all including attorny.
 

niraj724

Registered Users (C)
hello
that sounds optimistic.
i have an approved I -140 (Eb-1). i was planning to file for 485/ead/ap next week. Now in view of ths retrogression, would my Ead/AP be processed even though I understand that my 485 would have to wait till my Pd is reached.
All opinions welcome
thanks
 
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