Outlook for FY2007

unitednations said:
I've seen them posted on the forums.

I'm not sure how you access the forums. Instead of going through each forum individually to see new postings, the best way to get a snapshop of a new posting is to click on "new posts" near the top of the page.

This was a functionality that was added a couple of years ago. Prior to this people just stuck to specific forums that interested them.

That right the "New Posts" link is the best way to read this or any other forum that uses the same cookie cutter software.

neo
 
bostonqa said:
First of all, thanks for putting this out here.

A. is it true that all unused EB1 numbers are available to EB2.
---Yes. That is law..However, it does not happened till last year, as because EB2 demand was low. In fact, it is considerably less than EB1 in FY 2005.
B. if above is true, how are the excess numbers distributed for EB2?
-----DOS do not know or Do not care about this...
C. when are the numbers available for EB2? End of quarter? End of year?
----It did not happened before. Therefore DOS does not know how to allocate visa numbers as per law. Their system was designed so poorly, they can not comply with law. This is their escape. As per law, they should allocate unused visas in the first two months in a quarter to the oversubscribed countries in each catagory. Even after allocating to oversubscribed countries in that preference catagory, if they have excess visa in that quarter, then it should be given to lower catagories. (For example EB1 to Eb2 or EB2 to EB3). They should repeat this procedure at the every third month of each calender year. If they do this way, then they can efficently manage the numbers and comply with law
 
unitednations said:
I'm not sure what there is to understand.

Let's go through this once more:

Once a country or ROW is retrogressed, then all other categories in the same classification are subject to the 7% limitation.

ROW eb3 is retrogressed. Therefore, in eb3 india only has 2,800 greencards per year. 700 per quarter. Until ROW eb3 is current, india/china will remain at 2,800 (including dependents).

USCIS suspended ac21 in that row spillover visas in eb2 are not going to india/china. Instead they are going to eb3 row. This is why you are getting movement in eb3 row. They are essentially sacrificing eb2 india/china to catch up eb3 row which in turn will help eb3 india.

USCIS/DOS broke the law the last couple of years. They allowed more 485 filings then they were allowed. They spilled over row eb3 visas to India when they shouldn't have. (USCIS/DOS could argue that many people are getting benefits of 485 when due to uscis mistake they were allowed to file when there weren't enough numbers).

What did they learn?

Stick to the law. Approve or allow only enough greencards per quarter. Don't open the floodgates.

I talk to a lot of people and get a lot of e-mails. A lot of attornies send me ability to pay cases. I can connect a lot of dots of when labors are getting approved and from which states.

One Asian gentlemen is corresponding with me from Texas who just responded to a notice of findings from a labor that was filed in 1998. I've seen my first labor filed in regular permanent get approved from california in april 2001 two months ago.

I know many people at oracle who have regular permanent labors filed in 2001 that still haven't got approved.

Bottom line is India eb3 can only have 2,800 greencards per year until eb3 row becomes current. Read it, absorb it, learn it, let it sink in.

With regards to my personal situation, I am one month away (june 2002). As I've stated repeatedly, I've never been concerned with greencard. Nothing changes for me (economically, emotionally), I just go about my business.

Whether people disregard my postings on this issue I could care less. It's just when I see postings where people keep thinking there is going to be significant movement; I feel I need to intercede to let people know how the law works on this issue. However, people will believe what they want to believe.

When you say that they are sacrificing Eb2 India, I thought the rules were pretty clear on that. How can they just use their discretion and move between EB categories. I find that Just ignoring EB2 India and China and moving those numbers to EB3 ROW very disturbing, unless I am reading the rules incorrectly.
Also Am I correct in thinking that since EB1 everywhere is currrent we will perhaps see some spillover into EB2 and again since all but India and China are current in EB2 then India/China EB2 can expect those numbers?
Currently EB2 India is in an equally disheartening situation. Surely they can't just decide to just make rules affecting just one country to help out EB3 ROW .Then why bother even make rules.
 
posmd said:
When you say that they are sacrificing Eb2 India, I thought the rules were pretty clear on that. How can they just use their discretion and move between EB categories. I find that Just ignoring EB2 India and China and moving those numbers to EB3 ROW very disturbing, unless I am reading the rules incorrectly.
Also Am I correct in thinking that since EB1 everywhere is currrent we will perhaps see some spillover into EB2 and again since all but India and China are current in EB2 then India/China EB2 can expect those numbers?
Currently EB2 India is in an equally disheartening situation. Surely they can't just decide to just make rules affecting just one country to help out EB3 ROW .Then why bother even make rules.

unitednations has a perspective, which may be true, may not be true. i spoke personally to four lawyers about this and nobody for sure could tell how spillovers 'in reality' are currently working. there's too much of arbitrariness in the process. this sucks big time.
 
posmd said:
When you say that they are sacrificing Eb2 India, I thought the rules were pretty clear on that. How can they just use their discretion and move between EB categories. I find that Just ignoring EB2 India and China and moving those numbers to EB3 ROW very disturbing, unless I am reading the rules incorrectly.
Also Am I correct in thinking that since EB1 everywhere is currrent we will perhaps see some spillover into EB2 and again since all but India and China are current in EB2 then India/China EB2 can expect those numbers?
Currently EB2 India is in an equally disheartening situation. Surely they can't just decide to just make rules affecting just one country to help out EB3 ROW .Then why bother even make rules.
If DOS issued less than 40,000 visas in EB2 catagory and diverted those numbers to EB3, (particularly when thousands of peoples in EB2 line wating for 485 adjudication or waiting to apply 485), it is a BIG violation of INA by DOS. It is something similar in issuing 100,000 fresh H1B visas, when law says only 65,000 per year allowed. It is a big risk by DOS.
 
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UN I agree ...but will ROW EB3 be ever current?

UN,

I completely agree, that the country limits are being strictly enforced and spillover of EB2 ROW...is going to EB3 ROW...

The fact that EB2 ROW/EB1 ROW was current for the complete last fiscal year..obviously reflects that lot of these allocated visas did not get used...and obviously EB3 ROW is consuming it to make sure that the entire remaining amount is used as per fiscal year limits!!


Then this means 2 things - 1 - EB3 ROW had long passed the window of April 01...and should be come current in the near future...like EB2 ROW...


In fact, you are right, AC21 will kick back in lifting country limits - immediately once the EB3 ROW becomes current.....But, when? My personal guess would be that we are at least 2 years from it, I think! (Pretty much applications from April 01 to till date - about 4-5 years quota)

Are we saying that the puzzle will unravel itself when EB3 ROW becomes current and then India and other countries benefit from it??

this will definitely happen...is imminent....if we assume that all ROW applications in any fiscal year...would be less than 100K (140K - 10k x 4 -Ind/Mex/China/Philipines)....which is most likely true....

then it's only a matter of time before......EB3 ROW...becomes current...
 
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But, the trick is, let's say, after Eb3 ROw becomes current and 40k visas remain unsused from ROW...

then how will they distribute it to India/Phil/China/Mexico??? (Evenly give them 10k more each??? - Case 1)

But, if you read AC21 carefully, it says, the country limits won't be applicable only if supply exceeds demand of visa numbers per quarter...

With India/China/Mexico/Philiphines still left this will never happen....It may be long before all these countries combined demand (let's say around 200k is the current outstanind demand - just guess) will exceed available visa numbers....

Last time in 2001....AC21 also installed the recapture provision that suddenly gave an extra pool of 210k numbers....unless such a huge number is given....it may result in this,

the numbers not getting used and being left behind....until one day that the leftover numbers (200k) are big enough to satisfy all outstanding applications.....and finally AC21 kicks in and removes country limits(Case 2)

Will it be case 2 or case 1?

I am afraid case 2 may be the more plausble scenario......or if US Govt is dumb ...and hands over these unused numbers to Schedule A again...it's doom for everybody....
 
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unitednations said:
EB3 ROW people can definitely take the position that Indian nationals stole their greencards last year when the spillover went to India and then unavailable.

I do not know how you say that EB3 Indian nationals stole EB3 ROW in FY 2005. Have you seen statistics released by DOS? Otherwise please see the attached pdf file. Please do not populate wrong information. In FY 2005, DOS issued total of 123,000 EB3 visas. Out of which 100,000 was consumed by all countries other than India. India Consumed only 23,000 EB3 visas. Furthermore, till last quarter of FY 2005 EB3 ROW were current, EB3 mexico, India and china were retrogressed. Still USCIS has approved 100,000 "documentarly qualified" EB3 applicants apart from India, Therefore, EB3-ROW has already enjoyed greater extend by stealing EB2 numbers that belongs to India and China from 2005 onwards.

Furthermore, all extra AC21 visas, that were issed in 2005 to EB3-ROW catagory, came from EB1 and EB2 pool from AC21 law. So it technically those numbers belong to EB2 and EB1 catagory. As AC21 law does not clearly specify how to issue the unused numbers, DOS issued most of them to EB3 world. Now again victimizing Indians in EB2.

I want to tell one more thing. 7% is not a quota. It is just to avoid (not to prevent) monoplozing over subscribed countries. To explain further, if let us say a tiny country Suriname also affected by EB3 retrogression. Let as assume suriname typically consume very leass EB3 visas per year (may be 50 EB3 numbers). Then they can not argue that suriname should be "current" in EB3 catagory. Therefore it is not a quota. Therfore, EB3-ROW has already enjoyed and continuing enjoyment this year with the expense of Indians. UN prefer this spill over from EB2 to EB3, as he may belong to EB3-ROW.

Indians...Spend some time in analyzing the PDF file. (Note: This PDF file explains AOS cases in EB catagories as it constitues about 90-95% cases. The CP is very minimal in EB catagories)
 
28.6% limit

UN

Each category has limit of 28.6%.
Overflow can only happen from eb1 to eb2 if in a particular quarter, demand was less than the limit.

Since EB2 - China/ India are retrogressed, EB2 visas cannot flowTo EB3.

7% country limits can and have been breached as visa numbers were available in respective categories.

AC21 is the law, so I am confused that USCIS is "suspending" AC-21.
Section 104(a) of the AC-21 Act provides that if, on a quarterly basis, the number of visas available in all the employment-based preferences exceeds the number of immigrants qualified to receive the visas, then the overflow of visas may be allocated without regard to per-country ceilings.

I repeat, this is the law, so I am confused USCIS is "suspending AC-21.

Regards
GCStrat :)
 
can_card,

this PDF lists AOS (I-485 filings) and not (I-485 approvals)....

I-485 approvals are the ones subject to country limit caps.....

Look at it...the number of applications were 242,000...

Either we say that India used recaptured number from FY1999/2000 (131K) or used more from ROW...it may not be the same but pretty much conveys the same message...that India no longer has the luxury of consuming more than 10K per year from here on...

The fact is - it's not us...it's them....

US bends it's rules to remove country cap limits...as and when it fits...they removed it by concocting this huge AC21 recapture concept....but now that the market has saturated....and is nowhappy to turn a blind eye!
 
Speculation ..

santa4u said:
can_card,

this PDF lists AOS (I-485 filings) and not (I-485 approvals)....

I-485 approvals are the ones subject to country limit caps.....

Look at it...the number of applications were 242,000...

Either we say that India used recaptured number from FY1999/2000 (131K) or used more from ROW...it may not be the same but pretty much conveys the same message...that India no longer has the luxury of consuming more than 10K per year from here on...

The fact is - it's not us...it's them....

US bends it's rules to remove country cap limits...as and when it fits...they removed it by concocting this huge AC21 recapture concept....but now that the market has saturated....and is nowhappy to turn a blind eye!

Guys,

Good discussion but it just reinforces my belief that there are so many variables and so many uncertainties in this process that its almost pointless to try and make sense of it. In my dealings with the USCIS over the past 5 years I have found the agency to be totally inept and broken. Same is true for DOS. Over the years different Service Centers have intrepreted and implemented the same law in different ways and there has been no accountability. The key is that there is such a lack of clear information about the visa availability issue that anyone can come up with his/her own hypothesis and justify it in numerous ways.

I personally believe that the DOS and USCIS are capable of making any sort of decision in the short term without fully accessing the situation or the law. In such a situation we just need to sit tight and hope that one of their decisions leads to our approval.

regards,

saras
 
visa mystery

This is getting more complicated then I imagined.

Anyways, while everyone is trying to put forward what they think how this is supposed to work. I'm going to try my own version :)

“I think unused EB1 visas can spill over to EB2 as long as there is no retrogression in EB1.”

To justify this point I ask you to look at EB1 visa numbers for all months of last year. You will see that EB1 for India was retrogressed till August, and then it was current for 2 months. So my guess is they added the unused EB1 numbers of other countries to make EB1 India current.

I would closely monitor EB1 for Next month, if it stays current for all countries, there is a good chance we will have spillover to EB2.
 
santa4u said:
can_card,

this PDF lists AOS (I-485 filings) and not (I-485 approvals)....

I-485 approvals are the ones subject to country limit caps.....

Look at it...the number of applications were 242,000...

Either we say that India used recaptured number from FY1999/2000 (131K) or used more from ROW...it may not be the same but pretty much conveys the same message...that India no longer has the luxury of consuming more than 10K per year from here on...

The fact is - it's not us...it's them....

US bends it's rules to remove country cap limits...as and when it fits...they removed it by concocting this huge AC21 recapture concept....but now that the market has saturated....and is nowhappy to turn a blind eye!

can_card the title of the document says "IMMIGRANT VISAS ISSUES AND ADJUSTMENT OF STATUS...... FY2005" which implies that it includes I-485 filings ? Immigrant visas are not issued at the time of filing but at a later stage am I right ?
 
Visa issuance

AGC4ME said:
can_card the title of the document says "IMMIGRANT VISAS ISSUES AND ADJUSTMENT OF STATUS...... FY2005" which implies that it includes I-485 filings ? Immigrant visas are not issued at the time of filing but at a later stage am I right ?

AGC4ME,

Visas are only issued upon the actual approval of a 485. The system would probably work better if visas were alloted upon the filing of a 485. This would make the system a bit more stream-lined because the number of filings would directly correspond to the number of visas. This proposition has its own problems because it will diminsh the number of visas very quickly and a lot of people would not be able to apply for their GCs. They probably do not allot visas upon receipt of 485 applications because of the uncertain and inconsistent time of processing. Also there is always a chance of the application being rejected but this is a small concern because the visa alloted to a rejected case can be put back into the system.

regards,

saras
 
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How EB3 row numbers(when current)will spillover to EB3 India/China??

unitednations said:
ac21 allowed a country within its preference category to go over the 7% limit if the other countries within the category had more supply then demand. However, this is the portion that was suspended by DOS/USCIS. They went back to doing it the old way.

As you said,due to the suspension of AC21,spillover of visas from EB2 ROW to EB2 India/China is not happening & they are restricted to 7% country limit.I would like to ask you how this will be true when EB3 row will be current(in future) and then spillover unused visas to EB3 India/China??

Thanks
xxx123
 
Key is anticipation ...

unitednations said:
Here is the easiest reading. It is from November 2005 bulletin. They specifically stated that the 7% limit was going to apply.

http://travel.state.gov/visa/frvi/bulletin/bulletin_2712.html

D. EMPLOYMENT PREFERENCE VISA AVAILABILITY

The backlog reduction efforts of both Citizenship and Immigration Services and the Department of Labor continue to result in very heavy demand for Employment-based numbers. The amount of cases currently being processed is sufficient to use all available numbers in many categories. The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow.

WHAT CAUSES THE ESTABLISHMENT OF CUT-OFF DATES?

The Visa Office subdivides the annual preference and foreign state limitations specified in the Immigration and Nationality Act (INA) into twelve monthly allotments. The totals of documentarily qualified applicants that have been reported to VO are compared each month with the numbers available for the next regular allotment and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.

If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example, if the Employment Third preference monthly target is 5,000 and there are only 3,000 applicants, the category is considered “Current”.
Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the Employment Third preference monthly target is 5,000 and there are 15,000 applicants, a cut-off date would be established so that only 5,000 numbers would be used, and the cut-off date would be the priority date of the 5,001st applicant.
WILL THERE BE CUT-OFF DATES FOR ANY ADDITIONAL FOREIGN STATES IN THE FIRST AND SECOND PREFERENCE CATEGORIES?

It may be necessary to establish a cut-off date for the “All Chargeability Areas” Second preference category at some point during the second half of the fiscal year. It is too early to estimate whether future demand will warrant such action. As of October 1st, cut-off dates for the First and Second preferences for China and India were established due to heavy demand; cut-off date movement is expected to be limited until a demand pattern has been determined.

WHY ARE THERE CUT-OFF DATES THIS YEAR AS OPPOSED TO PREVIOUS YEARS, WHEN THE CATEGORIES WERE CURRENT?

While the Employment categories had been “Current” for almost four years, several important factors affected the decision to implement cut-offs for FY-2006.

Prior to July 2001, demand for Employment numbers was such that cut-off dates were in effect for many categories, and that is the case once again for FY-2006.
The reasons the Employment categories had become current were:

The American Competitiveness in the Twenty-First Century Act (AC21) recaptured a “pool” of 131,000 Employment numbers unused in fiscal years 1999 and 2000, and allowed those recaptured numbers to be used by the oversubscribed countries, and
The substantial decline in demand for numbers for adjustment of status cases prevented the annual limits from being reached for several years.
In FY-2006, we are faced with continuing heavy demand due to the DHS and DOL backlog reduction efforts, along with an Employment limit which is approximately 40% lower than that of FY-2005. The lower annual Employment limit is a result of the virtual elimination of the “pool” of recaptured AC21 numbers, returning us to the pre-July 2001 situation.

WHAT ABOUT SCHEDULE A NUMBERS?

The 50,000 Schedule A numbers will provide relief to many Employment preference applicants, since any Schedule A applicant whose priority date is beyond the relevant Employment preference cut-off date can be processed and charged against the 50,000 limit. It is expected that Schedule A numbers will be available on a “Current” basis throughout all of FY-2006.

HOW IS THE EMPLOYMENT-BASED PER-COUNTRY LIMIT CALCULATED?

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.


It is good reading indeed. However the key point remains that its all anticipation. The report itself states that they are basing it on anticipated demand. The anticipation is based on the DOL and BECs. When anticipation is based on feedback from useless agencies then dumb decisions are bound to be made. This is not to say that projected demand is NOT high but when exactly are the projections going to come true. They sure did not come true in fiscal year '06. My contention is that the anticipated huge demand for India EB3 did not materialize in fiscal '06 because India EB3 with its HUGE demand was unable to use 2800 (actually only 1400 because about 50% are probably dependents) visas that were alloted to it in '06. There were atleast 6-7 months in Fiscal year '06 when India EB3 was between Jan-April '01. With SUPPOSED TENS of THOUSANDS of India EB3 prior to April '01 waiting just for visas, the 1400 available visas should have ALL gotten used atleast in the last quarter of '06 if not sooner. However, portion of the 2800 India EB3 visas were still available till Sept '06. No amount of processing delays or other such excuses can explain this phenomenan. A projected huge demand that is unable to use up 1400 visas is a contradiction in itself.

Again my contention is that there are thousands of India EB3 (regular and 245i) from 2001 BUT they were still rotting in the BECs during most of '06. The BECs have only recently started approving backlogged cases in large numbers. These will make their way to the 485 stage in about 6-12 months and the dates for India EB3 will be stuck in April '01 for a long time because the anticipated huge demand will come to fruition only toward the early part of '07.

The DOS was right in its anticipation but its timing was WAY off. They could probably have moved India EB3 beyond April '01 in fiscal year '06 but did not because they kept waiting for the deluge from the DOL. We (especially 3rd- 4th qtr '01 EB3 India) will now pay dearly for this because the deluge has begun now. There is no solution other than a change in law.

The only plausible reason behind being so conservative is that this extreme retro has cleaned up a lot of old mess that the USCIS had neglected for a long time. As someone said, if you are not from India or in the EB3 category then the USCIS is your best friend. Most people are seeing approvals within 2-3 months of applying 485s. In their mind 85% of process is going great guns and they could care less for the remaining 15% of us. Its better than the whole process being slow.

regards,

saras
 
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unitednations said:
I had looked into this and going off of memory the unused visas would be allocated based on % of pending cases.

If India had bigger number of cases then they get more of the spillover.
My point is if its not working horizontally(ROW to other retrogressed countries in same category)in case of EB2,why would it work in case of EB3 later on?

Is is because EB3 retrogressed countries has more pending cases than EB2 countries?

Let me know

Thanks
xxx123
 
unitednations said:
the spillover by category into retrogressed countries in same category was an accomodation made in ac21.

November 2005 visa bulletin said they are suspending this ac21. It is not a violation of law.

Reason I know that this is how spillover is working was that there was a recent report that a person had posted from another lawyer website which stated China was on pace just to use their 7% limit times 140,000 greencards across all categories. This was in line with what the visa bulletin said in November 2005.

Depending on how you want to look at it. DOS/USCIS is sacrificing eb2 to get eb3 current faster. (it really was the smartest thing for them to do as a whole).

I know everyone wants to look at it from a selfish point of view. However, just keep in mind that many people who work for software companies set up offices in new hampshire, delaware, maine, iowa, south dakota to get ahead of line from people who were suffering in states severly impacted by labor backlogs. Many people who work for non consulting companies did not have this option.

EB3 ROW people can definitely take the position that Indian nationals stole their greencards last year when the spillover went to India and then unavailable.

However, USCIS/DOS/DOL is doing it is proof in how the visa numbers have played out over the last year. It is not a mistake. This is too high profile for them to mess around.

man, you didn't read my words in the post carefully. Again, you base your hypothesis based on one lawyer's bulletin and nov 05 vb, which we all have access to. reread my poster and you may realize that i'm not harping on eb3 india and indian nationals only. i'm talking about overall eb allocations currently happening at the dos/uscis.

i said the allocations are arbitrary and they are -- one year they decide to oversubscribe one country the other year they shut it down at the cost of eb2 india, which was current, then went to U, then retrogressed. check the dictionary, that's "arbitrariness." re-read my two lines in my post. get it? you tend to undermine other lawyers', members contribution/analysis to this discussion. two of the four lawyers i mentioned are top tiered lawyers in this country.

it's interesting that you think, and I quote " EB3 ROW people can definitely take the position that Indian nationals stole their greencards last year when the spillover went to India and then unavailable." man, you should be careful with your words; this could be construed as such people having some kind of bias against people from india. even though you have tried to sugar coat it, but it could definitely be interpreted that such people have some prejudices against indians. interesting huh?

i sincerely hope you are not one of them, as you are very important to rajiv's portal, for whatever reason you're contributing. take it easy man, and yes, part (not all) of this immigration system is a "mess" and needs to be fixed. peace.
 
dude UN is from pakistan...what else you can expect...ofcourse he is pissed @indians for stealing "HIS" green card, never mind the fact that it's an american who is sitting there and make the decisions of who should get and who should not.
 
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