Legally Challenge per country limits

H

hashitoxicosis

Registered Users (C)
I am a physician in EB2-NIW in the last year of my 5 year commitment. I am from India , which has retrogressed for EB2 to 2001.
I have a question, which if it has been asked before, please someone point me to that post.

My question is, what are the laws that form the basis of the per country limits? is it something at the BCIS level? It seems clear to me that per country limits are a clear violation of equal opportunity and justice. Can we challenge this in a court of law? Retrogression is really discrimination based on my origin if you ask me. Guru's please comment. TIA
 
hashitoxicosis said:
I am a physician in EB2-NIW in the last year of my 5 year commitment. I am from India , which has retrogressed for EB2 to 2001.
I have a question, which if it has been asked before, please someone point me to that post.

My question is, what are the laws that form the basis of the per country limits? is it something at the BCIS level? It seems clear to me that per country limits are a clear violation of equal opportunity and justice. Can we challenge this in a court of law? Retrogression is really discrimination based on my origin if you ask me. Guru's please comment. TIA
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Countries like Philippines have a decades backlog in family category, ( 4th category is retrogressed to Feb 1986) while other countries are at July 1997.

first of all, immigration is a privilege and is now being hated by American Citizens. Per country limit is a constitutional provision mandated with good intentions centuries back on demographic equalities. Now things have changed but law makers are afraid to reform immigration for obvious reasons.

Challenging the existing law is a futile effort.

Industrial, Economic and Academic pressure groups have to step up and force law makers to reform immigration in right perspective and detach such reform from illegal immigration reform.
 
hashitoxicosis said:
It seems clear to me that per country limits are a clear violation of equal opportunity and justice. Can we challenge this in a court of law? Retrogression is really discrimination based on my origin if you ask me.
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It is only discrimination if the per-country limit is different for different countries. Since all countries have the same limit, there is no discrimination going on.
 
hashitoxicosis said:
My question is, what are the laws that form the basis of the per country limits? is it something at the BCIS level?
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it's on INA which is the highest authority in immigration.

INA sec 202. (a) (2)

(2) Per country levels for family-sponsored and employment-based immigrants. - Subject to 1a/ paragraphs (3), (4), and (5) the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.



Basis of this concept is diversifying ethnicity. The same reason why some countries are allowed for DV entry and some are not.
 
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Immigration is a privilege, but for employment based applicants, it is also fulfilling a need that american citizens could not fill. So "just shut up it is a privilege" attitude is not fully justified. Especially for some in my status which is dependent on a foundation of "National interest"

As far as the fairness of the system, it is clear that all these laws came into effect once the indians and the chinese started coming in. For the europeans for decades it was wide open.

The fact is that for family based and for diversity lottery a percountry limit makes perfect sense. But for employment based where qualifications and job requirements alone should be the criteria.

Just a google search (not an idepth research so I could be wrong) seems to suggest that provisions of the INA has been questioned in courts before- just not sure how successfully.
 
I see your point; immigration is enabling employers fulfill a need for the country. You have completed all the steps of the GC process; but, can't file I485 because of the per country quota. This is interesting perspective.

Two questions come to mind: Even if per country quota is eliminated, it is those before you that will get precedence to file their 485 before you can. How will you challenge that?
What is the problem you are facing in the absence of the green card? For those on H1b who have approved I140 petition, they can live and work here, get promoted, change jobs while still retaining their PD. If this issue were to apply to NIW candidates alone, it will not have such a wider appeal; hence, asking the question.

All in all, interesting challenge to the law on the per country limit.


hashitoxicosis said:
Immigration is a privilege, but for employment based applicants, it is also fulfilling a need that american citizens could not fill. So "just shut up it is a privilege" attitude is not fully justified. Especially for some in my status which is dependent on a foundation of "National interest"

As far as the fairness of the system, it is clear that all these laws came into effect once the indians and the chinese started coming in. For the europeans for decades it was wide open.

The fact is that for family based and for diversity lottery a percountry limit makes perfect sense. But for employment based where qualifications and job requirements alone should be the criteria.

Just a google search (not an idepth research so I could be wrong) seems to suggest that provisions of the INA has been questioned in courts before- just not sure how successfully.
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If immigration is viewed as something to benefit America as a country, not as something to benefit the immigrants, per-country limits make sense if there is no additional effort to rank applicants within each category.

If you are an American, and you know that 140,000 people are going to immigrate anyway, why would you want the bulk of them to be from just one or two countries?

Ideally, they would have an intelligent points system (not the stupid one that was proposed earlier this year) and take the best 140,000 regardless of country. Diversity would sort itself out, because the best brains in the world aren't clustered into just one or two countries. And even if they were clustered in a small number of countries, you want the best, so diversity can take a back seat to quality.

But without a ranking system, one EB2 person is effectively the same as any other EB2 person; same thing with EB3. So they aren't really reducing the quality of the applicant pool by having a per-country quota.
 
The mistake they made is not having a per-country quota with H1B, while having it for green cards. They should have it on both or neither.
 
Country quota is a clear discrimination like OP said. Prior to coming to US they can discriminate but not after coming in. In fact country limits should be based on number of visas issued or number of GC's applied.
 
Jackolantern said:
If you are an American, and you know that 140,000 people are going to immigrate anyway, why would you want the bulk of them to be from just one or two countries?
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Why not?
If I am an American, and if we want 140K skilled people to come, why should it matter to me where they come from?

I would not care even if they all came from a single country. All I would care for is that they are the best and they have the skills I need in my country.

I would rather care more for the check points in place to verify the qualifications of the applicants.

And I would question if 140K is the right number. Or if it should be increased/decreased based on the demand each year? Or may be there should not be any numerical per year limit, but rather let the demand dictate the number of GCs issues.

For any good improvement to happen to the current immigration problem, it takes someone who is in power and has the courage to question any law that has run its course, and amend such laws from time to time to better serve current and future generations.
 
chitti007 said:
Why not?
If I am an American, and if we want 140K skilled people to come, why should it matter to me where they come from?
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But if there are 400K skilled people applying and only 140K can be allowed, I don't want them mostly from one or two countries if it's not the best 140K.
I would not care even if they all came from a single country. All I would care for is that they are the best and they have the skills I need in my country.
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And I agree if you're actually picking the best 140K. But without a points/ranking system within the categories, you're just getting 140K, not the best 140K.
 
Ironically if there was a quota system for H1b(with no outlets like L1) then this problem would have been sorted out a long time ago. Employee shortages would have arisen in certain areas and Employers, academic institutions, etc would have led to pressure on congress to reform EB immigration.
The notion that Skills based immigration should somehow be the vehicle to promote diversity is preposterous. Other forms of immigration should bear the brunt of that. Additionally, one simple easy incremental step that can be taken for now, is to simply take the 50K visas in the diversity lottery and add that to EB immigration. When you have diversity already built in to your immigration policy ie EB and FB immigration, why the need for more visas to promote diversity?
Why not a country quota system for spouse of US citizen too. These are all very inconvenient questions. However, the answer put forth that immigration is a benefit and not a right, while it is one way to put the argument to rest does not fully address the schizophrenic policy that is US immigration.
 
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Lack of system

It seems like there are many opinions on whether the per country limit is fair or not.
But there needs to be a systematic approach to the government and the approach has to be transparent as well.That is the fundamental issue. At some point in the last seven years, visa numbers were wasted. This is analogous to wasting food when people are hungry- a moral crime. The June visa bulletin cut off dates were April 2004 followed by the infamous july 2007 visa bulletin which made it current The elimination of backlog was not acheived at all as the bottle neck has merely moved to another stage.
Can we as Indians or from any other country lobby for fairness in the system. Had the system worked appropriately at least there would be no ups and downs as far as every monthly bulletin goes. A family would then decide whether waiting 5-7 years is worth it or not.
We should be asking for a systematic approach whatever that may be!
 
There have been several years when IN got more than the per country cap. Any overflow from ROW eventually goes to IN, CHI. Actually, this is not a quota but just a cap which is, therefore, soft anyway.
EB immigrants eventually bring their dependents through FB. Further, it is EB+FB numbers that are country capped not EB alone. There are people standing in the line to get here; so US citizens can choose who they want. Overall, I am not sure if the arguments we are making to remove the cap are going to carry any appeal from the wider audience.
alterego2 said:
The notion that Skills based immigration should somehow be the vehicle to promote diversity is preposterous. Other forms of immigration should bear the brunt of that. Additionally, one simple easy incremental step that can be taken for now, is to simply take the 50K visas in the diversity lottery and add that to EB immigration. When you have diversity already built in to your immigration policy ie EB and FB immigration, why the need for more visas to promote diversity?
Why not a country quota system for spouse of US citizen too. These are all very inconvenient questions. However, the answer put forth that immigration is a benefit and not a right, while it is one way to put the argument to rest does not fully address the schizophrenic policy that is US immigration.
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Madboy said:
Country quota is a clear discrimination like OP said.
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I'm still puzzled why you feel this way. If the INA was written in such a way that no more than 7% of all visas could be given to Indians, while up to 15% of all visas could be given to Chinese and up to 30% to Canadians, then that would be clear discrimination.

But each country is treated equally.
 
alterego2 said:
When you have diversity already built in to your immigration policy ie EB and FB immigration, why the need for more visas to promote diversity?
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I would argue that there is selection bias in the EB and FB systems.

In FB, only recent immigrants can sponsor individuals, since there needs to be a close relationship that people who immigrated a generation or two back don't have. FB therefore does NOT promote diversity; it actually does the exact opposite.

EB is biased because the hoops one has to go through to immigrate are intolerable to most professionals from First World nations who are capable of a similar standard of living in their home country. To them, any improvements in their lifestyle in America are outweighed by the costs of immigration, while the cost/benefit ratio is far better for someone from a less developed nation.
 
Madboy said:
Country quota is a clear discrimination like OP said. Prior to coming to US they can discriminate but not after coming in. In fact country limits should be based on number of visas issued or number of GC's applied.
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Generally speaking any limitation/restriction (in the human life) is discrimination. Based on your logic the limitation of 140K green cards per year in EB category is discrimination against EB immigrants. But there is no descrimination for oversubscribed countries like India, the same 7% as for any other country.

If you want to fight against the discrimination you need to support the elimination of total EB green card limitations per year, there would not be place for country quota if you win.
 
TheRealCanadian said:
I would argue that there is selection bias in the EB and FB systems.

In FB, only recent immigrants can sponsor individuals, since there needs to be a close relationship that people who immigrated a generation or two back don't have. FB therefore does NOT promote diversity; it actually does the exact opposite.
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FB is indeed anti-diversity, since by definition it brings in people who are just like the immigrants already here. So a per-country cap is applied on FB to reduce the anti-diversity effects of it. Without that per-country cap, nearly all FB immigrants would be Mexicans with not much room left for anybody else.

True, there is no per-country cap nor a global cap for spouses and children of US citizens, but that is for the benefit of the US citizens who want to bring in their family members quickly; the immigrants they bring in only benefit as a side effect.
 
TheRealCanadian said:
I'm still puzzled why you feel this way. If the INA was written in such a way that no more than 7% of all visas could be given to Indians, while up to 15% of all visas could be given to Chinese and up to 30% to Canadians, then that would be clear discrimination.

But each country is treated equally.
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True ... it is not USCIS fault that so many Indians and Chinese want to apply.
 
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