Outlook for FY2007

[desi3933]

can_card wrote:
>> It clearly indicates DOS has two different stargy for EB1 and EB2. I.e victimizing EB2 Indians to clear backlog in EB3-ROW.

May be large number of I-485 applications from India under EB2 category is the reason behind back-logged dates. Many people try to apply under EB2 category even if job doesn't qualify for that.

 

[WellWisher007]

I think, this is a possibility. Why not?. It is quite possible that India EB1 had not consumed 7 % in the first 10 months of the last fiscal year. There are quite a number of applicants, who do not apply for EB1, inspite of their qualifications, thinking that it is safe to apply in EB2.

Then how come for last two months of FY 2006 (Aug, sep 2006), EB1-India become "current" allowing all EB1 Indians to file 485 at the same time EB2-India become "unavailable"? If you think India EB1 has not consumed at least 7% in the first 10 months, I cannot belive.

 

[WellWisher007]

I agree with Santa on this

Knowing that EB1 Supply is greater than demand for all countries, without the spillover requirement, we have zeroed in, on the following scenarios:
1) EB2 ROW flows into EB3 ROW before flowing through to EB2 retrogressed countries
OR
2) EB2 ROW flows into EB2 retrogressed countries before flowing through to EB3 ROW

How can we find out for sure what actually happens in the USCIS world - Scenario 1 or Scenario 2 above? Can we pose the above question to various attorneys and take their advice? That way, we would be able to anticipate the movement of the PDs to some extent, if not accurately.

EB1-India - I think, is a case of annual limits not getting reached end of the fiscal year...and hence, they were forced to open it up....for Sept 2006...

and the fact that it didn't reach the cap for FY2006...obviously means that it is estimating the same for FY2007...and hence it kept it current for Oct 2006

 

[indian_gc_ocean]

Knowing that EB1 Supply is greater than demand for all countries, without the spillover requirement, we have zeroed in, on the following scenarios:
1) EB2 ROW flows into EB3 ROW before flowing through to EB2 retrogressed countries
OR
2) EB2 ROW flows into EB2 retrogressed countries before flowing through to EB3 ROW

How can we find out for sure what actually happens in the USCIS world - Scenario 1 or Scenario 2 above? Can we pose the above question to various attorneys and take their advice? That way, we would be able to anticipate the movement of the PDs to some extent, if not accurately.

Please understand that scenario 2 will never be true as long as eb3 row is retrogressed. Otherwise why would India eb2 go unavailable and eb3 row jump last year. If you are india eb2, please understand that you get 2,800 visas per year. No spillover fullstop.

Follow the threads like 'EB2 unavailable' before going through the same stuff again and again. Enough research has already been done on this.

 

[can_card]

I think, this is a possibility. Why not?. It is quite possible that India EB1 had not consumed 7 % in the first 10 months of the last fiscal year. There are quite a number of applicants, who do not apply for EB1, inspite of their qualifications, thinking that it is safe to apply in EB2.

In last year, India consumed about 6300 EB1 visa compare to 2800 (7% of 40,000) allowed. It is 2.25 times higher than limit. Therfore we can not believe that India EB1 has not consumed more than 7% in first 10 months.

Also as PD is severly retroggresd in EB2 and EB3 catagories in FY 2006. USCIS has very much leass load in processing 485s compare to last year. Therefore, USCIS might have approved so many 485s in first 10 months. I see EB1 guys getting approval with in 2 months of filing 485s.

 

[bostonqa]

Little help

While I'm no where close to some of the knowledge some folks appear/pretend to posses... <no pun intended>

I have read through some lines of our "current visa bulletin"

This is the section that enticed me
--------------------------------------------
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
--------------------------------------------
So I did little search for INA section 203(e) and found a whole maze of law which has links for every 5th word...
After 30 min of effort, I came to following 'Shallow' conclusion

"Unused EB1 numbers spill over to unused EB2 and everything unused in EB2 spill over to EB3 ....."

Above happens only if demand of EB1 is less then the supply for EB1.
Also this applies to all EB and not just EB ROW...


However there is a big caveat to this. The ratio of FamilyBased/EmploymentBased for a single country should be close to ratio of worldwide FB/EB.

I have no idea if above is true.
Folks need to read and verify this. Also I have no idea how they compute what is worldwide.

 

[WellWisher007]

We are not debating over what is being done currently by USCIS.. Please read the posts in this thread again.

We are debating over "what the law is and what is actually being done". If what is being done is NOT in compliance with what should be done according to the law, we have a possibility of raising this issue with USCIS through AILA liasion, etc.

Just my opinion.

Please understand that scenario 2 will never be true as long as eb3 row is retrogressed. Otherwise why would India eb2 go unavailable and eb3 row jump last year. If you are india eb2, please understand that you get 2,800 visas per year. No spillover fullstop.

Follow the threads like 'EB2 unavailable' before going through the same stuff again and again. Enough research has already been done on this.

 

[can_card]

Rajiv may help us

As wellwisher said it is not debated well, how DOS is allocating the unused visas in each employment preference catagories. The bottom line question is which is first prefered by law, after enacting AC21? Is the employment is catagory is first prefered or diversity is first prefered?

To put in different terms, (A) Nobel prize winners (EB1) or persons with exceptional ablities or national interest (EB2) from India is first prefered to use unsued employment visas or (B) skilled workers like restarunt cooks from countries other than India, China, Mexico is prefered to use unused employment visas from EB1 or EB2 to honor sec 202a(2).

The case B may be vaild before AC21 law, to honor sec 202 a(2) of act. 202 (a) 2 was avaliable for long time. AC21 was introduced particularly remove this constrain. It clearly says visas made available under that paragraph 1, 2, 3, 4, 5 (these are all EB classifications) shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter. They say each paragraph 1, 2, 3, 4, 5 may not have constrain of country quota if excess visa available. Therefore option A will get most prefrence than section 202 a (2)


(5) 2/ 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

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.

If we ask Rajiv or AILA or any other lawyers then we will get clear idea. I am sure they will support my interpretation.

 

[indian_gc_ocean]

We are not debating over what is being done currently by USCIS.. Please read the posts in this thread again.

We are debating over "what the law is and what is actually being done". If what is being done is NOT in compliance with what should be done according to the law, we have a possibility of raising this issue with USCIS through AILA liasion, etc.

Just my opinion.

if that is case, you can post in immigrationvoice.org. If they find if USCIS has interpreted the law wrongly(which i doubt) then will help us.

 

[Hanuman55]

Hope you are right & this is wrong!

http://travel.state.gov/pdf/FY05tableV.pdf

Take a look at EB1 numbers from these countries, Argentina, Brazil, Colombia, Canada, France, Germany, G Britain, Israel, Japan and then of course India & China against the world total of EB1.

EB1 consumed more than 28% of 140K! May be you can provide a better picture later. Is there anything that makes you think FY 2005 was an exception as far as EB1?

I still stick to my theory that there is a bug in their system that is double counting the visas issued. If they ask a old clerk in their office, a longtime federal employee in the corner, he/she can tell you the humbug that is going on and the lack of experience of the political appointees and their lack of gut feeling......!

I just hate making predictions.

However:

..............
110,000 will be used by ROW across all categories. Since ROW doesn't file much in eb1 and eb2 that is why we have seen movement in EB3 row.

.........

 

[gcstrat]

??

Guys and Gals

UN: This time I think you are mis-reading the law.
Can_card, I think, like me, you are on the dot.

AC21 amends INA and that stays unless there is futher amendment of INA.

Law, remains, as I see it, EB1 overflow flows within EB1 retrogressed then EB2 and only after that EB3.

Regards
GCstrat

 

[santa4u]

Based on FY05 data

Guys,

I thought the data was for I-485 filings...but may be I am wrong (thanks to can_card!)

I just looked at the FY05 data (assuming it's I-485 approval data)...

It looks like India had been steady at about 40-50K demand....Even ROW had normal appetite of 100k per year....everything was smooth...


But, suddenly, ROW increased it's appetite to 130K (+30K) in FY 2002 and to 115K(+15K) in FY2004 to 199K (+100K) in FY 2005 and ate away all the 131,000 numbers given by AC21....Hey, ROW is the one to blame for retrogression!

(Obviously, my opinion is biased towards India - but heck that's surely one way to look at it!)

 

[santa4u]

http://travel.state.gov/pdf/FY05tableV.pdf

Take a look at EB1 numbers from these countries, Argentina, Brazil, Colombia, Canada, France, Germany, G Britain, Israel, Japan and then of course India & China against the world total of EB1.

EB1 consumed more than 28% of 140K! May be you can provide a better picture later. Is there anything that makes you think FY 2005 was an exception as far as EB1?

I still stick to my theory that there is a bug in their system that is double counting the visas issued. If they ask a old clerk in their office, a longtime federal employee in the corner, he/she can tell you the humbug that is going on and the lack of experience of the political appointees and their lack of gut feeling......!

Hey, remember that 100k were left from the 131k pool of FY1999/FY2000 (recaptured numbers) in FY05...thus giving the actual quota at 240K (28% of which is 67K) just about the correct number for EB1

 

[santa4u]

In last year, India consumed about 6300 EB1 visa compare to 2800 (7% of 40,000) allowed. It is 2.25 times higher than limit. Therfore we can not believe that India EB1 has not consumed more than 7% in first 10 months.

Also as PD is severly retroggresd in EB2 and EB3 catagories in FY 2006. USCIS has very much leass load in processing 485s compare to last year. Therefore, USCIS might have approved so many 485s in first 10 months. I see EB1 guys getting approval with in 2 months of filing 485s.

In fact the numbers are bloated for all categories,
Eb1 - 6336
Eb2 - 16687
Eb3 - 23250

My guess is - that in FY05 - for the first quarter there was no cap imposition....from Oct 1, 04 to Dec 31, 04 and hence EB1/EB2/EB3 got bloated...but, then for the remaining three quarters USCIS imposed per country 10K limit (equivalent to 3/4th = 7.5K limit for the remaining 3 quarters)...

Hence, the first quarter helped the numbers to go over their limits! But, then, 7.5K was made available in the remaining 3 quarters...

 

[sfmars]

2005 was really exceptional

http://travel.state.gov/pdf/FY05tableV.pdf

Take a look at EB1 numbers from these countries, Argentina, Brazil, Colombia, Canada, France, Germany, G Britain, Israel, Japan and then of course India & China against the world total of EB1.

EB1 consumed more than 28% of 140K! May be you can provide a better picture later. Is there anything that makes you think FY 2005 was an exception as far as EB1?

I still stick to my theory that there is a bug in their system that is double counting the visas issued. If they ask a old clerk in their office, a longtime federal employee in the corner, he/she can tell you the humbug that is going on and the lack of experience of the political appointees and their lack of gut feeling......!

2005 FY was exceptional and gave a lot benefits to EB immigrants and especially to retrogressed countries

The biggest EB consumers are:

Philippinnes: 13K+
China: 21K+
India: 47K+
Mexico: 17K
S. Korea 16K

As for EB visas in FY 2005 and why it was exceptional:

Annual EB quota = 140,000 +
Unused family from 2004 = 8,449 +
-------------------------------------
Subtotal = 148,449

Based on AC21 act of 2000 it was allowed to make available 130,137 unused EB visas number from 1999 to 2000. Approximately 94,000 of those were used in FY 2005.

Total number of EB used visas in FY 2005 was ~ 242,449.
28% of 242,449 ~ 68K.

Just read this, everything is here.
http://www.uscis.gov/graphics/shared/statistics/publications/USLegalPermEst_5.pdf

Why are you surprised ? There is no bug in their system.

 

[neocor]

We need to stop the 245i hype.

I personally dont think that the 245i is that big a problem that its made to look like.
First is that 70% of these 245i filings will never see GC for many reasons.
Second the process was very very strict to be eligible via the 245i rule.
Third is that the a pessimistic estimate of Indians filing 245i will be only 40% of the total filings, and that the upper limit. In reality it will be maybe only 20%.
Fourth is that of all the 245i most may not fall into EB3 at all.

So I dont see 245i applications eating up the India EB3 Visa numbers.

This is what I think is happening. Just read this and think about it for sometime. It will all make sense.

Because of the Hype of 245i filings consulting companies and lawyers are luring prospective GC applicants to buy substitute labors that have priority dates prior to April 2001.
In such a scenario the demand for Visa numbers before 2001 keep adding up each month, even though USCIS keeps approving a number of GC in this period.
Also a lot of Labor substituion are fake and they ultimately dont get the GC, however between the time the 485 is filed and they come up for approval the USCIS counts them towards the Visa numbers for that period. When finally the application is rejected those Visa numbers may not be getting back into the pool completely and hence getting lost forever.
So in this fiasco there are some guys who are getting the GC early by jumping the line, but mostly all this results only in fat pockets for the lawyers and misery for the rest of the filers and this also is resulting is wastage of the Visa numbers.

I think i am the only person in these forms that seem to be pointing to the menace of Labor substitution as the biggest problem.
Time will definiteley show that this is the truth. I know that nothing can be done to stop this as the rule is there to stay.

Only thing we can do is to educate people about this problem as most people are getting duped and its also affecting us. We need to educate everyone that 245i is not the issue and not to listen to the lawyers. They will conveniently say things that will serve their purpose, but when you ask them specific question they will say that they are not able to interpret the rule exactly and will only give you wague answers.
So in short we need to educate people to not fall into the Labor substitution trap.

Dont ask me any question about proving my theroy, as i dont have any. I dont have any data as to how many Visas USCIS used up in 2006, how many Labor Subs were filed in 2006. I have a gut feeling that this is the issue and I am throwing clues to the gurus here who know the real numbers and know how to find them. Please take a look at this aspect.

Give it a thought, I think it will make sense.

neo

 

[can_card]

I agree with neocor some extend..

1. The main culprit is labor subtitution. Unless, they ban the PD will not move further. I do not know why DOL is still not doing it. I think they buckled under the pressure from strong lobbying power. They dont care about legal immigrants waiting in line for years.

2. The second reason is 245 i or k. Law makers gave amnisty to this group with out increasing visa numbers. This is the mistake. 140K per year is vey less for legal immigrants. This 245 i or k big elephant blocking the legal line. This is going to be a big blow for EB3 India, Mexico and China and some extend ROW.

Smart thing is to do is all legal immgrants request DOL is to ban labor sub and keep the 245 i or k in seperate track (or create new numbers for them) so that legal EB3 line gets clear. Otherwise it will be a never ending story. If DOS realized by some means that they made a mistake in allocating unused EB1 and EB2 numbers to EB3 ROW, then it will be very worst for all EB3 applicants.

 

[nonogc]

I don't agree with what you say. My attorney himself has more than 100 245i in backlog center waiting to go AD. Those people are all well related with someone in this country and I guess I have to say they have the relationship to keep their 245i going. I don't like the fact but I have nothing to say

 

[sfmars]

Labor Subs is not the main problem but definitly one of them which affects the retrogression. Of course the major problem is 245i.

It is not necessary to have long discussion about it, if to take a look at the bulletins one can see that critical date is April,30th 2001. It is the last day of filing 245i.

As for Labor Substitution it also causes cut off dates to be retrogressed at least indirectly. A lot of consulting companies keep unused LC with general position requirements kind of "Software Engineer" with PD 2000/2001 to be substituted in the future.

When DOL and USCIS almost came to conclusion to eliminate LC substitution, it caused a lot of protests from immigration lawyers.

But generally speaking elimination of Labor Substitution will give a big relief to retrogressed people in EB2/EB3 category. Number of 245i can be roughly estmated. In case of unsed and available Labor Certifications for substitutions.... I believe there is no mechanism or technique to estimate how many of them.

 

[guldukan]

245i was and continues to be a big problem. Don't you guys read the postings. You are seeing some of the 245i's just starting to get approved or denied recently for 485's that were filed two to three years ago.

Last year, in april 2005 USCIS approved over 30,000 eb greencards. This was mainly due to the insistencer of Ombudsmen report (read last year's report). He mainly gave them grief for not approving cases. Well they went overboard and approved them too fast and caused eb3 to go unavailable.

The main culprit is NOT LABOR SUBSTITUTION. There is abuse. Some of the lawyers did post their comments in response to DOL law change regarding this. Lawyers (correctly) stated that if DOL think it is such a big problem then prove it. How many labor substitutions happened? How many were denied? How many investigations were performed? What is the total percentage? Due to these questions, DOL couldn't properly respond because they don't know and USCIS probably didn't keep statistics of how much substitutions have happened.

I agree, here is some of things to prove this, read all this report and you will findout all the reports suggest in so many words that 245i is the main culprit

think about this guys, Labor subst is mainly for IT guys, many IT guys could easily get qualified under EB3 and can get labor certified, there are few who lost jobs and were desperate to get GCs who took labor subst route, you will not find many of them not in thousands for sure.

http://www.doleta.gov/sga/rfp/PwCFinalReport.cfm

read this one particularly to know about 245i cases
http://www.visalaw.com/05sep3/11sep305.html