Retrogression confusion.
I am trying to understand the implications of the amended AC21. Here is the text with the amendment that they put up in the conference papers and later got promulgated. As the exact text is yet to be made available at the thomas site, at the time of this writing, I have done the cut & paste indicated in the conference agreement:
(1.Source for the pre 05/11/2005 AC21 is
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_public_laws&docid=f:publ313.106
2.Source for the conference report is again from thomas)
(d) Recapture <<NOTE: 8 USC 1153 note.>> of Unused Employment-Based
Immigrant Visas.--
(1) In general.--Notwithstanding any other provision of law,
the number of employment-based visas (as defined in paragraph
(3)) made available for a fiscal year (beginning with fiscal
year 2001) shall be increased by the number described in
paragraph (2). Visas made available under this subsection shall
only be available in a fiscal year to employment-based
immigrants under paragraph (1), (2), or (3) of section 203(b) of
the Immigration and Nationality Act and any such visa that is made available due to the difference between the number of employment-based visas that were made available in fiscal year 2001, 2002, 2003, or 2004 and the number of such visas that were actually used in such fiscal year shall be available only to employment-based immigrants (and their family members accompanying or following to join under section 203(d) of such Act (8 U.S.C. 1153(d))) whose immigrant worker petitions were approved based on schedule A, as defined in section 656.5 of title 20, Code of Federal Regulations, as promulgated by the Secretary of Labor';
(2) Number available.--
(A) In general.--Subject to subparagraph (B), the
number described in this paragraph is the difference
between the number of employment-based visas that were
made available in fiscal years 1999 and 2000 through 2004
and the number of such visas that were actually used in such
fiscal years.
(B)(i) Reduction.--The number described in subparagraph
(A) shall be reduced, for each fiscal year after fiscal
year 2001, by the cumulative number of immigrant visas
actually used under paragraph (1) for previous fiscal
years.
`(ii) MAXIMUM- The total number of visas actually used under
paragraph (1) may not exceed 50,000.'.
(C) Construction.--Nothing in this paragraph shall
be construed as affecting the application of section
201(c)(3)(C) of the Immigration and Nationality Act (8
U.S.C. 1151(c)(3)(C)).
(3) Employment-based visas defined.--For purposes of this
subsection, the term ``employment-based visa'' means an
immigrant visa which is issued pursuant to the numerical
limitation under section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)).
I suspect this capping with the 'Maximum' proviso is what has made the DOS very cautious and clamp down so heavily.
Total Emplyment based immigrants acc to USCIS Statistical Yearbooks
(
http://uscis.gov/graphics/shared/statistics/)
Total annual limt on employment-based preference immigrants is at least 140,000.
(Ref for eg
http://dosfan.lib.uic.edu/ERC/visa_bulletin/9903bulletin.htm)
Year Utilization Annual Limit
1999 56,817 cap 140,000 Unused 83,183
2000 107,024 cap 140,000 Unused 32,976
These numbers indicate 116,159 available for recapture per erstwhile AC21.
DOS bulletin was indicating some 130K or so. May be someone can find their statistcs site and reconcile this.
Continuing with the numbers:
Year Utilization Annual Limit
2001 used 179,195 quota 140,000 Used from { 39,195
2002 used 174,968 quota 140,000 recaptured? { 34,968
Tot used frm recaptured 74 ,163
2003 used 82,137 quota 140,000 Unused 57,863
2004 used Not Avlbl quota 140,000 Unused Not Known
Cururrently updated AC21 is
1.extending the recapture period upto 2004
2.restricting usage of newly recaptured visas to only Sch A Occupations
3.limiting the total usage of recatured visas to 50,000.
Things do not add up. Does the current amendment previous excess usage illegal? Cannot be, because it was perfectly legal when it was used. So, we have already used over 50K now they are trying to cap. Can you use the recapture from 2003 for Sch A? Looks like NO because you would cross the mandated 50K cap. Can you stretch it and say, we can use 50K afresh for Sch A – It is a huge stretch, the departmental attorneys would not give such a huge stretch (of course, without a famous last name!?) even this Attorney General may not be willing to stretch it that far and give such an opinion.
What is it that is missing in this equation? Is this a mischief of some congressional-aide that the conference version (now promulgated into law) has deviated so far away from the saner Senate version and created this mess?
No flames or lessons for me please, in these tense times.
If possible, get better numbers from other Gov Departments and explain this- Are the Sch A chaps getting anything at all in this bargain, besides loss ofor EB1,2,3?
