Visa Recapture Discussion

[geterdone]

http://discuss.ilw.com/content.php?5202-Article-How-Does-Uncle-Sam-Waste-Immigrant-Visas-By-Brent-Renison

According to this more than 500 K was wasted in EB and 180 K was recaptured. What was the reason they did the recapture, when did this happen and why did they do 180K? Just curious......

7K EB visas were wasted in 2013?

[qesehmk]

7K EB visas were wasted in 2013?

EB visas - to CO's credit - haven't been wasted since a long time - almost 2007 onwards. I would be mighty surprised if any EB visas were wasted after 2007.

[dec2010]

http://discuss.ilw.com/content.php?5202-Article-How-Does-Uncle-Sam-Waste-Immigrant-Visas-By-Brent-Renison

According to this more than 500 K was wasted in EB and 180 K was recaptured. What was the reason they did the recapture, when did this happen and why did they do 180K? Just curious......

7K EB visas were wasted in 2013?

Isn't it the case that unused EB go to subsequent year FB and vice versa. Barring few exceptions ( That guru's can point out ) , they are not wasted per say.

[Spectator]

http://discuss.ilw.com/content.php?5202-Article-How-Does-Uncle-Sam-Waste-Immigrant-Visas-By-Brent-Renison

According to this more than 500 K was wasted in EB and 180 K was recaptured. What was the reason they did the recapture, when did this happen and why did they do 180K? Just curious......

7K EB visas were wasted in 2013?geterdone,

It's a deeply flawed article full of mistakes, as you have already spotted.

In FY2013, EB received 161,269 approvals, which was 2,803 more than the limit set of 158,466. At best, the table should have a zero. In addition, in FY2014, EB received 151,357 approvals, which was 1,116 more than the limit set of 150,241.

The entire right column of the newer figures is incorrect.

Correcting everything and using the figures in the article, it shows that 499,301 visa were "wasted" between FY1992 and FY2014.

180,039 of these were "recaptured" by Congress, reducing the "wastage" to 319,262. The recapture consisted of 130,039 recaptured as part of the AC21 legislation, plus a further 50,000 for Schedule A workers in 2005. All were fully utilized.

Between FY1992 and FY2014 EB received a further 280,399 extra visas which flowed back from FB under the same provisions of law that allowed the "wastage".

The NET "wastage" of EB visas between FY1992 and FY2014 is therefore 38,863.

In FY2015, EB received a further 4,796 visas from FB. The net "wastage' now stands at 34,067 + any visas wasted in FY2015, based on the figures in the article.

PS I'l give you an analogy that actually works for a change.

To claim there are 319k wasted visas is like claiming a loss of $319k based on those being your expenses, while ignoring the fact that you had $280k income.

[geterdone]

geterdone,

It's a deeply flawed article full of mistakes, as you have already spotted.

In FY2013, EB received 161,269 approvals, which was 2,803 more than the limit set of 158,466. At best, the table should have a zero. In addition, in FY2014, EB received 151,357 approvals, which was 1,116 more than the limit set of 150,241.

The entire right column of the newer figures is incorrect.

Correcting everything and using the figures in the article, it shows that 499,301 visa were "wasted" between FY1992 and FY2014.

180,039 of these were "recaptured" by Congress, reducing the "wastage" to 319,262. The recapture consisted of 130,039 recaptured as part of the AC21 legislation, plus a further 50,000 for Schedule A workers in 2005. All were fully utilized.

Between FY1992 and FY2014 EB received a further 280,399 extra visas which flowed back from FB under the same provisions of law that allowed the "wastage".

The NET "wastage" of EB visas between FY1992 and FY2014 is therefore 38,863.

In FY2015, EB received a further 4,796 visas from FB. The net "wastage' now stands at 34,067 + any visas wasted in FY2015, based on the figures in the article.

PS I'l give you an analogy that actually works for a change.

To claim there are 319k wasted visas is like claiming a loss of $319k based on those being your expenses, while ignoring the fact that you had $280k income.

I will take the 34K if they can make it available or actually even half of that.

[EB3Iwaiting]

geterdone,

It's a deeply flawed article full of mistakes, as you have already spotted.

In FY2013, EB received 161,269 approvals, which was 2,803 more than the limit set of 158,466. At best, the table should have a zero. In addition, in FY2014, EB received 151,357 approvals, which was 1,116 more than the limit set of 150,241.

The entire right column of the newer figures is incorrect.

Correcting everything and using the figures in the article, it shows that 499,301 visa were "wasted" between FY1992 and FY2014.

180,039 of these were "recaptured" by Congress, reducing the "wastage" to 319,262. The recapture consisted of 130,039 recaptured as part of the AC21 legislation, plus a further 50,000 for Schedule A workers in 2005. All were fully utilized.

Between FY1992 and FY2014 EB received a further 280,399 extra visas which flowed back from FB under the same provisions of law that allowed the "wastage".

The NET "wastage" of EB visas between FY1992 and FY2014 is therefore 38,863.

In FY2015, EB received a further 4,796 visas from FB. The net "wastage' now stands at 34,067 + any visas wasted in FY2015, based on the figures in the article.

PS I'l give you an analogy that actually works for a change.

To claim there are 319k wasted visas is like claiming a loss of $319k based on those being your expenses, while ignoring the fact that you had $280k income.

Sorry but do not agree. 280,399 extra visas which flowed back from the FB are authorized by law. That does not nullify the wastage. Wastage is still wastage, period. Based on your analogy, 319k expenditure is still expenditure, does not matter how much you earned. Considering the number of years people are waiting in the backlog with no career progression, unable to take better jobs or even a promotion (talking about ones who are yet to file AOS), wastage of even a single EB visa is appalling.

[Spectator]

Sorry but do not agree. 280,399 extra visas which flowed back from the FB are authorized by law. That does not nullify the wastage. Wastage is still wastage, period. Based on your analogy, 319k expenditure is still expenditure, does not matter how much you earned. Considering the number of years people are waiting in the backlog with no career progression, unable to take better jobs or even a promotion (talking about ones who are yet to file AOS), wastage of even a single EB visa is appalling.No, because in a perfect world (the one recapture seeks to return it to), there would be no wastage in either FB or EB.

In a world without wastage, where all EB visas were used or unused EB visas were added to the next years allocation, EB would receive 140,000 visas a year, or an average of 140,000 a year.

There would be no access to spare visas from FB, so it's double dipping to both claim the visas were wasted and also accept the visas back. In a perfect world without wastage, there would have been no visas to come back.

In the real world, FB should also get their wasted visas back, because in a world you want for EB they never would have been available. Maybe you don't care about FB.

Let's put it another way:

Over the period FY1992 to FY2014, without any wasted visas, EB should have received 140,000 * 23 years = 3,220,000 visas. Without any wasted visas, FB would have contributed zero to EB.

With the extra visas from FB to date and the recapture, EB (plus Schedule A) has received 3,161,467 visas in that 23 year period. The difference (net wastage) in this calculation is 58,533.

Why the extra 20k? It's proved impossible to get totally DOS data on use and allocations for the above calculation, particularly for the early years. That's meant using some DHS figures, which always vary from the DOS one's. Over a 23 year period, even small differences between DOS and DHS figures add up.

To do the calculation properly, you would need to send a FOIA request to DOS for all usage and numerical limit data for the relevant years for both EB and FB. I suspect the real figure lies towards the higher end of the range.

The Ombudsman states the data in the original report was provided by DHS, so it does not represent the best data available. DOS are the official keeper of the statistics, as designated by Congress.

A fair solution would seek to return the number of visas back to the situation that would have prevailed had wastage never occurred and that equally applies to FB, who have far larger backlogs than EB.

Any proper attempt to recapture the visas should also include changing the law so that in future, unused EB visas in one FY are added to the next FY limit for EB, with similar provisions for FB. That way, visas can never be wasted again. I won't even get into the debate as to whether it's even possible to recapture visa numbers without Congress passing a Bill to do so. Congress has certainly shown twice before that they believe that is the appropriate method to do so.

As to the analogy, try explaining that to the auditors or IRS and see where it gets you!

The argument about the FB visas flowing back being under the law, equally applies to the possibility of visas being wasted in the first place. It can happen because of the existing law. You seem to want your cake and eat it on several points. It's totally myopic (certainly deliberately blinkered) logic.

[EB3Iwaiting]

Unlike EB, sometimes FB visas are wasted because applicants do not show up with proper documentations on time at the consulates.By law, those visas then flow into the EB quota. If an applicant is denied a visa, that number is added back to the pool as NVC allocates a visa number prior to the interview. I agree in a perfect world, all visas should be processed on time. Thanks to USCIS' bureaucratic delays, that is not always the case. I also agree there is no point in arguing if recapture is possible without Congress. There is legislative history in that.

Anyway, the more important discussion in this thread is how much spillover can EB3I expect this year? After the latest PERM numbers, does the graph still stand good that EB3I may clear out this year?

[Spectator]

No. These 46K Indian PERM certifications will NOT affect my FY16 predictions in any way.
In fact ALL these 46K(except the porting applications) will go into cold storage for next one decade and they will NOT be active unless Obama admin does something in the EO or next congress does any legislation.
All matters is ROW certifications, though there is a raise in ROW(NO-IC) certifications from 22,964(FY14) to 26,857(FY15) which directly affects the spillover to EB2&3-I in FY16,
I still see that these 46K of Indian PERM certifications will create processing delays for ROW applications to get complete and eventually helps EB2&3-I to get more spillover than expected.YT,

I think you raise a good point.

The surge in PERM certifications is going to translate to a surge in I-140 filings, otherwise the value of the PERM is lost.

I think a a fair number of the Indian PERM will be under PP, since the business model seems to wait until the H1B is nearing the end of the 6 year period. The I-140 approval is needed in many cases to allow H1B extensions beyond 6 years. If USCIS has to use the resources to deal with PP cases, it would cause a slowdown in regular cases, or the sheer number of applications will simply be beyond their processing bandwidth.

Such a slowdown in regular processing would inevitably lead to further increases in the I-140 backlogs. I think that is the point you are making - longer I-140 processing will lead to an overall longer processing time for the I-485.

I agree with that, but I also think there are nuances beyond that.

The WW folks are also pretty savvy. They won't be unaware of the situation. There will increasing pressure to have their I-140 premium processed as well (I have no idea what the current % that do is). If everybody requested PP and the numbers became too high, USCIS might consider withdrawing the ability to do PP, which would negate the effect, but at a high price for everybody.

The backlog of I-140 cases at USCIS is already reaching quite a high level. A surge in I-140 filings would probably increase it further.

In Q2 FY2015, the I-140 backlog reached 36.1k and it was reduced to 33k in Q3 due to very high completion rates by USCIS.

The last time the I-140 backlog reached the Q2 level was in FY2011. At that point, USCIS instigated a backlog reduction effort and the number fell to about half that level for the next 1.5 years, before further dropping to 7.2k in September 2013. The numbers have increased from that point to the present situation.

What I am saying is, that it cannot be totally discounted that USCIS will once again take affirmative action to reduce the I-140 backlog. We are certainly approaching the threshold where they have done so previously.

On a completely different note, I'm sure you also noticed the fairly significant increase in the % of PERM certifications for ROW that appear to be EB3 cases. Having followed the PERM certifications on an almost daily basis, I wasn't totally surprised, although the change was higher than I expected.

There seem to have been a large increase in the number of PERM certifications for jobs that would fall under EB3-Other Worker (sometimes referred to as EB3-EW). I think this is a direct result of most Countries in EB3 becoming near Current.

I've certainly noticed a large increase due to just a few companies for workers in, for example, the pizza restaurant business and for chicken processors or similar (I'm sure there's other as well). Most of the candidates appear to be from either from China or South Korea. As an aside, although these jobs only have minimum requirements of None or High School education, the majority of the individual ETA9089 I looked at had candidates with Associate or Bachelor degrees.

As it affects China, it probably doesn't. Both dates in the VB for EB3-EW-China are heavily retrogressed. For South Korea, it's different story. The increase is probably going to change the dynamics of EB3 somewhat.

EB3-EW only has a maximum allocation of 5k out of the total 40k allocation for EB3 as a whole. It's a factor because the last 2 year have seen fairly low use within the EB3-EW subcategory (2.271 in FY2014). It's possible that has already risen in FY2015.

It's a factor because South Korea has the ability to use huge numbers of visas without reaching the 7% limit. It's a factor because increased use within ROW directly impacts the amount of FA within EB3.

I don't know how it will play out and I haven't factored it in to any calculations. Nonetheless, I think it is worth mentioning.

[Positive]

No, because in a perfect world (the one recapture seeks to return it to), there would be no wastage in either FB or EB.

In a world without wastage, where all EB visas were used or unused EB visas were added to the next years allocation, EB would receive 140,000 visas a year, or an average of 140,000 a year.

There would be no access to spare visas from FB, so it's double dipping to both claim the visas were wasted and also accept the visas back. In a perfect world without wastage, there would have been no visas to come back.

In the real world, FB should also get their wasted visas back, because in a world you want for EB they never would have been available. Maybe you don't care about FB.

Let's put it another way:

Over the period FY1992 to FY2014, without any wasted visas, EB should have received 140,000 * 23 years = 3,220,000 visas. Without any wasted visas, FB would have contributed zero to EB.

With the extra visas from FB to date and the recapture, EB (plus Schedule A) has received 3,161,467 visas in that 23 year period. The difference (net wastage) in this calculation is 58,533.

Why the extra 20k? It's proved impossible to get totally DOS data on use and allocations for the above calculation, particularly for the early years. That's meant using some DHS figures, which always vary from the DOS one's. Over a 23 year period, even small differences between DOS and DHS figures add up.

To do the calculation properly, you would need to send a FOIA request to DOS for all usage and numerical limit data for the relevant years for both EB and FB. I suspect the real figure lies towards the higher end of the range.

The Ombudsman states the data in the original report was provided by DHS, so it does not represent the best data available. DOS are the official keeper of the statistics, as designated by Congress.

A fair solution would seek to return the number of visas back to the situation that would have prevailed had wastage never occurred and that equally applies to FB, who have far larger backlogs than EB.

Any proper attempt to recapture the visas should also include changing the law so that in future, unused EB visas in one FY are added to the next FY limit for EB, with similar provisions for FB. That way, visas can never be wasted again. I won't even get into the debate as to whether it's even possible to recapture visa numbers without Congress passing a Bill to do so. Congress has certainly shown twice before that they believe that is the appropriate method to do so.

As to the analogy, try explaining that to the auditors or IRS and see where it gets you!

The argument about the FB visas flowing back being under the law, equally applies to the possibility of visas being wasted in the first place. It can happen because of the existing law. You seem to want your cake and eat it on several points. It's totally myopic (certainly deliberately blinkered) logic.
So when Jeh Johnson wrote that hundreds of thousands of visas have gone unused he too was being myopic and having a blinkered view? http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdfhttp://
And the Ombudsman was indulging in a similar blinkered view when he reported the wastage in CISCOMB report to Congress for FY2010 (page 35). And the US chamber of commerce similarly blinkered http://http://immigration.uschamber.com/uploads/sites/400/USCC_DOS_recapture_table1.pdf (http://immigration.uschamber.com/uploads/sites/400/USCC_DOS_recapture_table1.pdf)
Moreover, comparing FB and EB visa wastage is flawed because the statutory scheme provided for a cap and a floor for FB which has been fully operational. FB cap = 480,000 -(IR usage from prior FY) + (EB unused from prior FY) with a 226,000 floor. As the report explains, "[d]espite detailed statutory scheme to avoid unused allocated preference numbers: (i) FB has largely been unable (since FY97) to use unused EB because of much higher IR demand than anticipated in 1990 resulting in operation of the FB floor most years after which EB unused never lead to issuance of a preference immigrant visa, and (ii) each year despite fall - across both EB and FB have been left unused due to agency delays within each FY." Moreover, unlike FB, no floor was set for EB. **** Unacceptable content removed ****

[Spectator]

So when Jeh Johnson wrote that hundreds of thousands of visas have gone unused he too was being myopic and having a blinkered view? http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdfhttp://
And the Ombudsman was indulging in a similar blinkered view when he reported the wastage in CISCOMB report to Congress for FY2010 (page 35). And the US chamber of commerce similarly blinkered http://http://immigration.uschamber.com/uploads/sites/400/USCC_DOS_recapture_table1.pdf (http://immigration.uschamber.com/uploads/sites/400/USCC_DOS_recapture_table1.pdf)
Moreover, comparing FB and EB visa wastage is flawed because the statutory scheme provided for a cap and a floor for FB which has been fully operational. FB cap = 480,000 -(IR usage from prior FY) + (EB unused from prior FY) with a 226,000 floor. As the report explains, "[d]espite detailed statutory scheme to avoid unused allocated preference numbers: (i) FB has largely been unable (since FY97) to use unused EB because of much higher IR demand than anticipated in 1990 resulting in operation of the FB floor most years after which EB unused never lead to issuance of a preference immigrant visa, and (ii) each year despite fall - across both EB and FB have been left unused due to agency delays within each FY." Moreover, unlike FB, no floor was set for EB. So yes, one can say objectively without blinkers that visas were wasted unless one adopts a blinkered view, against self-interest, and in alignment with Numbers USA, and FAIR et al.Thank you for so eloquently explaining the fatal flaw in the current system.

If a visa is wasted in FB then the current formula for calculating the FB allocation makes it impossible for FB to ever receive that visa back from EB via the reciprocal use of wasted visas in the next FY.

As you say, there is a limit of 480k FB visas. Within that, there is no limit on the number of IR visas issued and a minimum allocation of 226k for FB Preference classes if insufficient remain. Currently, and for a long time into the past, IR has used the majority of the 480k overall limit. Since FY2004, the figure has not been less than 436k, with a peak of 580k in FY2006. IR approvals alone have regularly exceeded the 480k total. FB preference classes have only had a FY allocation set that was above the minimum 226k level once since FY1997.

Without the minimum 226k figure for FB Preference classes, the number available would have varied from ZERO to 45k. It's resulted in a situation where there is NO number of spare visas that EB could provide that would lift the number of FB preference visas above the 226k minimum number, even the full 140k EB allocation.

In contrast, if FB visas are wasted, EB benefits by every single visas wasted by FB.

When EB wastes a visa, they have 100% ability to benefit from a wasted FB visa to offset that loss.

When FB wastes a visa, they have 0% chance to benefit from a wasted EB visa.

This clearly is not what was envisaged at the time Congress set up the present system in 1990. It was flawed from the start anyway - it should have just allowed each preference group to reclaim their own wasted visas in the following FY. The earliest figure I have found for IR use is FY1995. At that time IR used 220k and I suspect it was even lower in FY1990. At that level FB preference classes would have been expected to benefit from any spare EB visas.

It's an inescapable fact that, without wastage in either FB or EB preference categories, that EB would have received 140k visas per FY and that FB would have received at least 226k per FY. That's what visa recapture should seek to restore, based on rhe fact that this was not achieved due to inefficiencies in the LC, and AOS processes (mainly) for EB and inefficiencies in the Consulate visa issuance process (mainly) for FB.

Anything else is a sleight of hand attempt to retrospectively increase the EB allocations over the last 23 years. I don't disagree that it is a laudable aim, but it is wrong. I've said previously that I don't believe that some of the FB categories should exist and that I don't believe that the relative numbers allocated to family reunification vs employment is correct. However, that is what the American people, through Congress, decided in the past and we do not have the right to override that decision. Righting a wrong - absolutely.

It's high time the American people had an honest debate about what they want from immigration and change the law accordingly. Unfortunately, there does not seem to be the appetite for that conversation at present.

It's totally unacceptable in my mind to encourage high levels of non-immigrant employment numbers to the USA, particularly so heavily tied to the employers advantage, in the full knowledge that the majority of these same people will want to settle here permanently, yet not have a mechanism to allow that to happen.

Either the mechanism has to be provided, or the USA should have to cope with consequences of not having access to those non-immigrant workers and the undoubted benefits they bring to the USA economy and life.

PS:- I've removed the totally unacceptable slur in your post that was so obviously aimed at me personally. I don't know or care what other forums you may frequent, or whether such behavior is tolerated there, but if you wish to be part of this forum, such behavior is NOT tolerated.

PPS:- Clearly this is an emotive subject. This is my last post on the subject.

[qesehmk]

Positive and Spec - an outstanding discussion and depth in just two posts - 1 each.

Positive - you raised an outstanding point about FB not being able to accept unused EBs and hence EBs getting wasted. It really opened my own eyes.

However - you could've left out your accusation. That was wholly unnecessary. Anyway look forward to a fruitful contribution from and discussion with YOU.

Spec - Totally agree about the need for America to really decide what they really want out of legal immigration (and immigration in general). The current system is failing immigrants - particularly legal ones because the system has become unjust and leads to exploitation. It just is a new form of slavery. The blacks of yesteryears are replaced with EB23-I workers.

[imdeng]

Oh Spec - If only we can get you on the Senate or something :-)

It's totally unacceptable in my mind to encourage high levels of non-immigrant employment numbers to the USA, particularly so heavily tied to the employers advantage, in the full knowledge that the majority of these same people will want to settle here permanently, yet not have a mechanism to allow that to happen.

Either the mechanism has to be provided, or the USA should have to cope with consequences of not having access to those non-immigrant workers and the undoubted benefits they bring to the USA economy and life.