No more country limit's?

B

bostonqa

Registered Users (C)
---I'm only talking in regards to FY-2007 in light of current development.---

Now that everything is current there would not be any need to per country quota. CORRECT?
Or since EB3 other is not current ("U") they cannot use AC21?

India is eligible for more then 7% of EB visa quota. correct?

as long as everything stays current they can issue 40K (arbitary number) EB visas to India. correct?

they have hinted retrogression in Sept for China, India, etc

Now if there is no per country quota, how can they retrogress EB for China, India, or any other country unless EB3 ROW is not current?

So unless they retrogress ROW, logically they should not retrogress at least EB2 for India, China and other countries
 
bostonqa said:
Now that everything is current there would not be any need to per country quota. CORRECT?
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For now. If they start hitting the limits per country then they can retrogress again.

Or since EB3 other is not current ("U") they cannot use AC21?
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AC21 has nothing to do with whether your PD is current or not.

they have hinted retrogression in Sept for China, India, etc
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Looks like they may hit the per-country limit again.
 
TheRealCanadian said:
For now. If they start hitting the limits per country then they can retrogress again.



AC21 has nothing to do with whether your PD is current or not.



Looks like they may hit the per-country limit again.
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Thanks for the reply.

so as of July 1st they can approve any number of EB applications irrespective of country from which the applications are filed.
and suppose they approve 20K (more then 7% limit) EB applications from India.
but say they decide to retrogress China, India EB categories. they will have to make EB unavailable for China and India.

also if ROW EB3 stays current, they cannot retrogress EB2 India (assuming EB1 remains current). Correct?
 
They can only accept the application but can’t approve anyone if visa number is not available. In other words if they have x number of visa for India and y number of visa for China, then although they accept all the applications for India and China but can’t approve more than x number of visa for India and similarly can’t approve more than y number of visa for China.

This is not the case with India, China, Mexico and Philippine only, it is the case with each and every country in the world, every country is suppose to get not more than 7% of total visa. For example although there wasn’t any cut off date for Canada in EB2 category it means they can accept all the application from Canada, but if they have already issued 7% visa to Canada then they will not approve further application for Canada. They will accept the application, but it will be approve when visa number will be available.

AOS approval is not a single step process; instead it is a two step process. If AOS case is approvable then its status will be “Ready to Adjudication” (or whatever you call). It means if visa number is available then these application are ready for approval, otherwise they will move into Workload Distribution (WD). In WD cases are put in the order of their PD, means when visa number will be available then the oldest case will approve first.

It means if we have x number of cases in WD and at current month the there is only y visa numbers available and x is larger than y (in other words more applications are waiting then available visa number) then only the oldest y (the available visa numbers) applications will be approved.

So it means even if some one file LC now and get is next month and file I-140 and I-485 next month it doesn’t mean that he/she will get GC quicker than someone whose PD is in 2003. (Of course I assumed Name checked is cleared and application is ready to approve).

If ROW is current then still they can retrograde India and China if their visa numbers are already allocated. (They did it in past too) Even if they won’t retrogress, then still they can’t approve the AOS until the visa number is available not matter how many persons are eligible to apply.

PS: Everything I said is about what my understanding and knowledge of current process and law, I am not a lawyer so act accordingly.
 
MA_05 said:
They can only accept the application but can’t approve anyone if visa number is not available. In other words if they have x number of visa for India and y number of visa for China, then although they accept all the applications for India and China but can’t approve more than x number of visa for India and similarly can’t approve more than y number of visa for China.

This is not the case with India, China, Mexico and Philippine only, it is the case with each and every country in the world, every country is suppose to get not more than 7% of total visa. For example although there wasn’t any cut off date for Canada in EB2 category it means they can accept all the application from Canada, but if they have already issued 7% visa to Canada then they will not approve further application for Canada. They will accept the application, but it will be approve when visa number will be available.

AOS approval is not a single step process; instead it is a two step process. If AOS case is approvable then its status will be “Ready to Adjudication” (or whatever you call). It means if visa number is available then these application are ready for approval, otherwise they will move into Workload Distribution (WD). In WD cases are put in the order of their PD, means when visa number will be available then the oldest case will approve first.

It means if we have x number of cases in WD and at current month the there is only y visa numbers available and x is larger than y (in other words more applications are waiting then available visa number) then only the oldest y (the available visa numbers) applications will be approved.

So it means even if some one file LC now and get is next month and file I-140 and I-485 next month it doesn’t mean that he/she will get GC quicker than someone whose PD is in 2003. (Of course I assumed Name checked is cleared and application is ready to approve).

If ROW is current then still they can retrograde India and China if their visa numbers are already allocated. (They did it in past too) Even if they won’t retrogress, then still they can’t approve the AOS until the visa number is available not matter how many persons are eligible to apply.

PS: Everything I said is about what my understanding and knowledge of current process and law, I am not a lawyer so act accordingly.
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I know this is definitely not true.

if you can pullout 2005 FY stats, India got 40K EB visas, which is far more then the 7% limit.
and for FY2005 at some point all the categories were current.

I think this is due to the AC21 ruling, which states that if demand is less then supply (proven by ROW being current?) they will waive the 7% country limit.

my question is will they apply 7% limit in July(when every category is current)? or waive it.

this would be very beneficial to folks from India, the more number of cases get thru the better it is for remaining folks when they start enforcing the per country limits.
 
Last edited by a moderator:
Here is the answer of your question

---------------------------------------------

From Nov 2005 Visa Bulletin
http://travel.state.gov/visa/frvi/bulletin/bulletin_2712.html


Section 201 of the INA sets an annual minimum Family-sponsored preference limit of 226,000, while the worldwide annual level for Employment-based preference immigrants is at least 140,000. Section 202 sets the per-country limit for preference immigrants at 7% of the total annual Family-sponsored and Employment-based preference limits, i.e. a minimum of 25,620.

The annual per-country limitation of 7% is a cap, meaning visa issuances to any single country may not exceed this figure. This limitation is not a quota to which any particular country is entitled, however. The per-country limitation serves to avoid monopolization of virtually all the visa numbers by applicants from only a few countries.

The AC21 removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.

In recent years, the application of the rules outlined in AC21 has allowed countries such as China – mainland born, India, and the Philippines to utilize large amounts of employment numbers which would have otherwise gone unused.

During FY-2006, due to anticipated heavy demand, the AC21 provisions are not expected to apply, and the amount of Employment numbers available to any single country will be subject to the 7% cap. It is anticipated that the addition of unused FY-2005 Family numbers and the remaining AC21 numbers to the 140,000 annual minimum will result in an FY-2006 annual Employment limit of 152,000. This will mean an Employment per-country limit for FY-2006 of approximately 10,650.

To illustrate the effect of the reduced per-county limitation during FY-2006 on the oversubscribed countries, it should be noted that during FY-2005 India used approximately 47,175 Employment numbers.

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And here is Info about AC21

http://thomas.loc.gov/cgi-bin/query/D?c106:4:./temp/~c106ljxq37::

Sec 104

(5) RULES FOR EMPLOYMENT-BASED IMMIGRANTS-

(A) EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE- If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 203(b) for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.

(B) LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (E)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section 203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b) consistent with subsection (e) (determined without regard to this paragraph), in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens specified in section 203(b).

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Hi,

It is possible for PDs to retrogress again as indicated in the July 2007 Visa Builletin. For instance if PDs retrogress again in August, it is important to know that even if a retrogression occurs, USCIS must accept ALL otherwise eligible I-485s filed by July 31. USCIS will then continue to provide EAD and AP benefits until the 485s are adjudicated. Further, please note that in the event of a retrogression, USCIS will adjudicate I-485 applications that were filed prior to retrogression only if the individual’s Priority Date is current at the time they review it. For example, if your Priority Date is EB-3 06/01/2006 and the August 2007 Visa Bulletin retrogresses that category’s date to 04/02/2006, USCIS will continue to hold your pending I-485 but will not process it until your 06/01/2006 Priority Date becomes current again. Therefore, one’s Priority Date (the date the Labor Certification Application was filed) will likely again supercede the filing date of the I-485. While it is important to file the I-485 by July 31, it is probable that no advantage will be gained on the basis of one having been filed earlier than another.
 
TheRealCanadian said:
This is wrong. Every petition must be "approvable when filed", so if a visa number is not available then the I-485 cannot be submitted.
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It seems you didn't understand my message 100%. Well let me explain with some reference and example.

From the I-485 Standard Operating Procedure document.

When you file the I-485 then first Mail room does its review and then INS (USCIS) review it. Here is the step for reveiw in mail room by contractor

1. Sort envelope by received date.

2. Attach photos with the following priority
First place photo with I-131 (if filed)
Then place photo with I-765 (if filed)
Then place photo with I-485

3. Review correct fee

4. Review penalty fee (for 245(i) cases)

3. Review signature

4. Review eligibility (i.e. I-140 employment based, I-130 family based, I-360 religious worker etc)

5. Review visa number

5. Review location (i guess now it should be NCS, the document i refer is before bi specialization aug 2002)

6. Open Medical record (I-693)

I skip the I-131 and I-765 reveiw process

7. Data Entry

Then it comes to INS (USCIS) review

1. Review 245(i) penalty fee

2. Review reject criteria (e.g. signature, visa availability, I-140, I-130, I-360 etc)

3. Reveiw medical record

4. Review I-131 and I-765 (if applicable)

Then G-325A processing

Perform CIS (Central Index System) check to see if person already have A number. (In case of approved I-140 you already have A number)

If there are multiple A number then process thorugh CRU (Case Resolution Unit)

If there isn't any A number (such as for dependent) then assign one.

After G-325A processing perform Data entry into CLAIMS and then wait for adjudication. RAFACS records are created after data entry.

All files are staged in File Maintenance after they have been data entered and scanned.

When I-485 accepted then service center request for FD-258 (FBI Fingure print responses, background check etc)

FBI response may be IDENT (identical), Non-IDENT (Non identical), Reject (fingure print unreadable), Pending (conducting more search)

Then file is purged. Purging is a process by which INS identifies and resolve missing information prior to adjudication.

If visa petition is available the route the file to Workload Distribution (WD)

WD stage the files that had a visa number available at the time of filing; however, between the date of receipt and the date of adjudication, the visa became unavailable.

Check the Interview waiver criteria

If visa number is available, and application has all the required evidance then recommond for approval.

Then INS (UCSIC) officer or contractor request the visa and continue for next step. When visa has been allocated the I-485 is ready to approve.


See from the simplied version of this step (the whole document is 269 pages long) the visa is acually allocted after recommonded for approval.

What does it means, that even if there are only 10,000 visa numbers are available in July, still 50,000 application can be filed because date will be current.

Thats what i wanted to say they will accept the application but it doesnt mean they will approve it. Approvable application means to pass the above criteria that date is current and filed with all the documents.

Well if you supposed that you will get visa number as soon as you file the I-485 then what will be the situation if 200,000 persons will file the employment based I-485 in July? Will they release one more visa bulliten in between?
 
Txtraveler said:
Thats correct. Thats what I was told by my lawyer too, which is why I had to wait for 4+ years to file my I-485.
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You waited 4 years because your PD was not current. Now your PD is current and your case is approvable, but approvable doesnt mean that it will be really approve now.

They dont allocate visa when you file I-485. It is Department of State that issues a visa not USCIS. At the last stage of I-485, USCIS will get visa from Department of State.

From the

Citizenship and Immigration Services Ombudsman Annual Report

Page 51

For example, when employment-based visas are not used during the year they are authorized, they are lost and are not available for future use without special legislation. In FY 06, over 10,000 employment-based visas were lost, even though USCIS had an estimated 100,000 to 150,000 pending applications for employment-based green cards.36 Based on USCIS use of visa numbers as of May 2007, at present consumption rates approximately 40,000 visas will be lost in FY 07 without a dramatic increase in USCIS requests of visa numbers.37 As illustrated below, since 1994 there have been over 218,000 un-recaptured employment-based visas lost due to underutilization of the employment-based visas.


This document explain a lot whey all dates are current. And this documents indirectly explain one more thing that it is Department of State who issues the visa at the last stage of I-485 (because if it happens at the time of filing then there wont be less demand.

Hope i am able to convey my point of view now.
 
MA_05 said:
It seems you didn't understand my message 100%. Well let me explain with some reference and example.
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I think we are on the same page. I just wanted to ensure that people didn't get under the impression that they could file an I-485 with a non-current PD.
 
:) Yes they can't file I-485 if their PD is not current, this is a hard constraint no matter visa numbers are available or not for current fiscal year, their PD has to be current.
 
MA_05 said:
:) Yes they can't file I-485 if their PD is not current, this is a hard constraint no matter visa numbers are available or not for current fiscal year, their PD has to be current.
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Priority date is "current" only when visa number is available.
 
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