FAQs

[qesehmk]

Friends,

Lets use this thread to build a database of knowledge. So if you know something then post it as a question first and then answer below.

This will especially help the newbies.

If you want to correct something that somebody else has already posted ... please send a private message to that person to have it corrected.

thanks
Q

[qesehmk]

Q2 - Why don't we see any movement in Visa dates for months - especially for India and China?

Ans - This is because for these countries the demand is heavy. Their annual country quota (which is about 3K) is not sufficient to cover the #of applicants applying per year. As a result these countries typically depend on availability of "LEFTOVER" visas from others countries (something we refer to as SOFAD)!

However USCIS doesn't want to give up SOFAD until the end of very year. So they will move visa dates throughout the year for these countries only to cover the country quota ie. approx 3K. And then of course because of SOFAD we see jerky movements at the end of the year.

p.s. - by year we mean USCIS year which starts in October every year and ends in Septemeber the following year.

[obione]

Was the SOFAD already given up for this year?

Answer - No USCIS typically would only apply country quota until Q3 i.e. end of June. After that SOFAD will come into picture which would also mean movement in visa dates.

ps. - obione sorry I didn't answer this for a long time

[qesehmk]

Q - Which all agencies are involved in GC Processing?
Ans - Typically Dept of State, Dept of Labor and Dept of Homeland Security are involved.

DoL - Approving Labor Certification
DHS - Approving 140 & 485 (adjustment of status)
DoS - Visa administration and Consular Processing (through NVC)

USCIS falls under DHS and has district offices in all major cities in US.

An immigrant typically would apply to these district offices if the candidate is Family based. For employment candidates the application is made to Atlanta or Chicago PERM (labor) center through a lockbox facility.

p.s. - This is meant as a general overview. Pardon my ignorance for any mistakes. I will be happy to correct.

[qesehmk]

Q - How many conversions are taking place?

Answers - Approximate 4-6K per Q Teddy and Spec on this forum. And that is only EB3I. EBC it seems is not converting big time. EB3ROW may be but there is no way to know it.

[Spectator]

Q - What is Spillover and what is SOFAD?

Answers -

1) Spillover

Spillover refers to the reallocation of unused visas to Countries that are otherwise limited in the number of visas they can receive (usually by the 7% limit). It normally happens in the last Quarter (July - September) of the Year.

Spillover is comprised of two distinct types. Visas first Spill Across, then Spill Down :

a) Spill Across

Also referred to as Fall Across. This is the horizontal reallocation of visas within a Category (EB1, EB2 etc).

If a Country or Country Group (such as ROW) have more visas than they have applications able to use them, then these "spare" visas can be allocated to other Countries within the same Category.

Normally the flow is from ROW to a 7% limited Country, but 7% limited Country to 7% limited Country is also possible, as when Mexico and Philippines donate visa numbers to China and India in EB2.

b) Spill Down

Also referred to as Fall Down. This is the vertical reallocation of visas from one Category to another.

There are rules about what is allowed. Unused visas in EB4 & EB5 flow upwards to EB1. Unused visas in EB1 flow downwards to EB2. Unused visas in EB2 flow downwards to EB3. Unused visas in EB3 cannot flow upwards and would be reallocated to Family Based visas in the next Fiscal Year.

2) SOFAD

SOFAD (Spillover Fall Across and Down) is Spillover + the normal allocation that a Country receives (around 3k for 7% limited Countries).

As Teddy Koochu put it so succinctly, "in essence it means numbers from all possible sources for a given category."

As an example, if Spillover to EB2 was 20.5k, then SOFAD for Countries requiring the Visas (EB2 China and India) would be 26.1k (20.5 + 2.8 + 2.8 = 26.1k).

[Spectator]

Q. 1 - How do I know how many TOTAL number of people are waiting out there for GC before me?

Answer - No single agency maintains a list that has every application. Cases currently undergoing processing may be in one of 3 locations:

a) NVC

DOS maintain a list of applications at the NVC that will be dealt with by Consular Processing. Depending on the Category and Country, these represent 1-35% of all cases.

These people have opted to have their cases processed by DOS at a Consular post outside US and to obtain an Immigration Visa for entry into the USA. Most of these folks are waiting in their own countries to get their visa. Some are in US and hoping to go to their own country to get their VISA when their turn comes. (NVC stands for National Visa Center).

Whilst these numbers are published, there is insufficient detail to say how many applications there are for each Country within an individual Year or Month.

However, some idea of the level of Consular Processing for a Country/Category can be found by looking at published reports to see what happened in previous years.

b) USCIS Inventory

USCIS maintains an Inventory of most cases that they are dealing with. It includes people who adjust their status within the USA rather than being processed by DOS at a foreign Consulate. Until recently, it only included cases at the two Service Centers in Nebraska and Texas. As of January 2011, it also includes cases that have been pre-adjudicated at Field Offices, but could not be approved due to Visa Retrogression.

c) Field Offices

As well as the Service Centers, USCIS also has a network of local Field Offices. If USCIS feel a personal interview is needed, the case is transferred from the Service Center to the local Field Office.

An unknown proportion of applications are still at these locations awaiting an interview. Until such time as an interview takes place, these cases are completely invisible. No report is available that lists them at this time. After interview, the cases will become part of (b), unless they were approved immediately.

In addition, there are also cases that do not yet appear in any of the reports, but which may have an earlier Priority Date than your own.

i) New Applications

Some people have been unable to submit their I-485 applications because the Cut Off Dates have retrogressed (sometimes called People Who Missed Boat (PWMB)).

ii) Porting

For EB2, it is possible that a person with an earlier Priority Date in EB3 will complete the process of obtaining a new I-140 for EB2. Since they are allowed to retain the earlier Priority Date, the new EB2 case may have an earlier Priority Date than your own.

Since the numbers from all sources are not known with precision, some intelligent guessing is required to arrive at a sensible answer.

[kranthi]

140,000 Green Cards are issued each year for employment based category.
EB1, EB2, and EB3 is allotted 28.6% each, which equals 40,040 green cards for each of the categories.
Irrespective of the size or population of the country, a 7% cap is imposed for each country, which would be (140,000 * 28.6% * 7%) 2802.
My question is:
Is the 2802 green cards / category / country / year
Or 2802 green cards / country / year ? (includes eb1, eb2, eb3)

-------- ANSWERed by Q

2802 is mathematical quota per country per year per category (EB1-2-3). EB4/5 will have 7% each (approx 700). USCIS insists that this is not entitlement but a max allocation when no spillover are in effect.

However 2802 also is not a precise number. 7% is actually calculated across EB as well as FB categories. Since FB annual limit is 226K (at least!), the 7% could actually become 7000 across both categories. IT is a known fact that some countries are able to exceed their FB specific 7% quota because they had no EB demand. It is not clear if a country can exceed EB specific quota if there is no corresponding FB demand.

An interesting fact is that S Korea has in recent years received 5K EB2 allocation. Its not clear what was the rationale behind it. Whether it was received before or after spillover is not known.
--------

The answer below by Spec possibly answers the korea situation mentioned above.

Answered by Spectator

To directly answer the question, the 2,803 would relate to per Category per Country. i.e EB3-India would have a theoretical allocation of 2,803 visas.

It is often very convenient to think of the numbers in this way.

However, the regulations concerning the 7% per Country limit are actually spelt out in a slightly different way. The 7% is calculated against the total Employment Based and Family Based Visas available in a year.

Since the minimum numbers are 140,000 and 226,000 respectively, the 7% limit is actually no lower than 25,620 visas across all immigrant categories.

Sometimes, it might be convenient to consider this as 7% of the 1400,000 EB visas, or 9,800 visas, but even this is not always true.

There are 2 situations where there are exceptions to the 2,803 visa number representing 7%.

a) Total Approvals in some EB Categories are Low, Allowing High Approvals in Another

For Countries such as China and India, who have high demand in EB1, EB2 and EB3, this is not a factor.

Two Countries, Mexico and Philippines have low demand in EB1 and EB2. Therefore, they can have high approvals in EB3, yet still not exceed the overall 7% limit of 9,800 visas within EB.

As an example, EB3-Mexico had 7,740 visas approved in FY2010, which is far more than the notional 3,016 figure for 7% in FY2010. However, Mexico only had a total of 2,652 visas approved in EB1 and EB2 combined.

That gave total approvals in EB for Mexico of 10,392. However, this did not exceed the overall 7% figure for EB of 150,657 * 7% = 10,546 applicable in FY2010.

b) Total Approvals in EB Exceed 7% But Not in EB & FB Combined

It is possible that a Country has a high number of approvals in EB but low numbers of approval in FB. They may therefore exceed the overall 7% limit for EB, but remain within the 7% limit for EB & FB combined.

An example of such a Country is South Korea. If the 7% limit were set solely against EB visas, South Korea would be a 7% limited Country. However, they have very few approvals in FB and therefore come nowhere near the overall 7% limit.

DOS explained the situation in the April 2010 Visa Bulletin http://www.travel.state.gov/visa/bulletin/bulletin_4747.html


If a foreign state other than an oversubscribed country has little Family preference demand but considerable Employment preference demand, the otherwise unused Family numbers fall across to Employment (and vice versa) for purposes of that foreign state’s annual numerical limit.

For example, in FY-2009 South Korea used a grand total of 15,899 Family and Employment preference numbers, of which 1,688 were Family numbers and 14,211 were Employment numbers.

This grand total was well within the FY-2009 per-country numerical limit of 25,620 Family and Employment numbers combined, so South Korea was not oversubscribed.

The unused Family numbers were distributed within the Employment categories, allowing South Korea to be considerably over the 9,800 Employment limit which would have been in effect had it been an oversubscribed country.[/QUOTE]

[jlreyp]

Questions

1. When I look at the USCIS website; there is a link to a pdf doc with the I-485 Employment Based Inventory statistics (jan 5, 2011), what do these numbers represent?
2. When I look at the travel.stage.gov website, there is another pdf doc titled Demand Data Used in the Determination of the February 2011 Employment Preference Cut-Off Dates. What do these numbers represent?
3. What is the diference b/w numbers from Question 1 and Question2?
4. What makes these numbers change all the time?

Answered by Q
#1 - These are the number of people in different EB categories and by country whose green card processing is in the final stage (AOS). These numbers only represent such cases at service centers (viz nebrasca and texas). They do not include any other such cases at NVC (i.e. consular processing) or district offices (i.e. AOS cases)
#2 - These numbers represent cases where of all people waiting for a visa - those that are documentarily qualified (i.e. all AOS processing is done EXCEPT assignment of a visa number). The assignment of a visa number will take place when the date is current AND a visa is available.
#3 The difference is 2 fold - a) #1 doesn't include consular processing and DO demand. b) #2 excludes documentarily not yet qualified cases from #1
#4 The continuous processing of these pipelines will obviously change these numbers.


Answered By Spectator

1) USCIS Inventory

This document is published by USCIS, part of the Department of Homeland Security (DHS).

For Retrogressed Countries, the figures represent the number of pre-adjudicated cases where people have chosen to Adjust Status within the USA by submitting an I-485. The numbers include all applications, whether submitted by the Primary beneficiary of an approved I-140 or their Dependants. An explanation (slightly out of date) can be found here http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5e170e6bcb7e3210VgnVCM100000082ca60aRCR D&vgnextchannel=24b0a6c515083210VgnVCM100000082ca60a RCRD


For Current Countries, the figures represent a snapshot of Pending applications at the time the Inventory was made.

Up to and including the October 2010 Inventory, the figures only included those cases held at the two Service Centers (Nebraska & Texas).

From the January 2011 Inventory, the figures also include cases that have been pre-adjudicated at the Local Offices after interview and then sent to TSC.

The Inventories to date do not include cases sent to Local Offices, but which are still awaiting interview. This number is currently unknown.

2) Demand Data Used in the Determination of the February 2011 Employment Preference Cut-Off Dates

This document is published by the Visa Office (VO), part of the Department Of State DOS.

These figures represent all the cases that the Visa Office are aware of that could be issued a Visa.

It is made up of cases :

a) From USCIS handling Adjustment Of Status cases.
b) From the National Visa Center (NVC), consisting of “documentarily” qualified applicants for Consular Processing. Applicants qualify themselves at their convenience, so it does not follow that the CP portion represents all possible cases.

In theory, this should be a figure higher than the corresponding USCIS Inventory figure. Puzzlingly, that isn’t always the case.

3. What is the difference b/w numbers from Question 1 and Question2?

As discussed above, in theory for the same month, the difference should only be the number of “documentarily qualified” cases ready for interview at a Foreign Consulate. In practice, the figures don’t always reflect that.

This may be a problem of 2 different departments from 2 different Federal agencies providing information to a single system (IVAMS).

4. What makes these numbers change all the time?

a) USCIS Inventory

Factors which reduced the figures would be:

i) Approvals
ii) Denials
iii) Withdrawals
iv) Successful Porting and approval of the I-485 would reduce the EB3 figure.

Until the latest January Inventory, the factor which increased the figures was:

i) New cases found at the Service Centers

From the January Inventory, the number can also be increased as:

ii) New pre-adjudicated cases are transferred from the Local Offices to TSC.

b) DOS Demand Figures

As well as factors which would affect the USCIS supplied portion of the figures –

Factors which reduced the CP portion of the figures would be:

i) Denial after interview at Foreign Consulate.
ii) “Stale” cases are removed by NVC.
iii) Cases where the person failed to respond to an interview notice, or failed to attend the interview are probably removed from the figures. The person can “documentarily qualify” again at a later date.

Factors which would increase the CP portion of the figures:

i) New applicants become “documentarily qualified”.

[qesehmk]

Question - While registering, why is this website asking for my birthdate?

Answer - We are not interested in your birthdate for any reason other than to comply with COPPA requirements (one kind of legal compliance) whereby we need to make sure that users are 13 years and older.

As long as you truthfully state that you are older than 13 years you should be fine.

[jlreyp]

Q - Is it true that after waiting several years for EB3-ROW PD to become current, they are requesting immigrants to re-submit employment letters, medical health examinations, fingerprints, etc? If not, in which cases are they sending letters to RFE? What exactly are they requesting to re-submit?

Answered By Qesehmk - Jlreyp sorry for my ignorance. Replying quite late and that too may not be quite satisfactory to you. Medical records are only valid for 1 year so its not entirely surprising if they are requested again (however not always they will ask to resubmit). Fingerprints are resubmitted if there are some issues (false positive or false negative) or especially when people submitted fingerprints when USCIS was not as digitized as it is today. Also for employment letters it wouldn't be surprising for USCIS to ask for employment letter if the company's credentials are not strong. Hope this helps. Others please do respond to confirm/refute/add.

[qesehmk]

Q - Why Didn't We See More SOFAD in 2010?

Ans - Those who are wondering how much SOFAD we saw in 2010 and why it was not more, here is some explanation of what happened.

We expected a SOFAD 33K-53K. Of this 23K was to come from EB2 ROW, 24K EB1 and 6K from EB4/5. In reality India and China received 26.5K. What happened was EB2-ROW saw PERM processing for 2007-08-09-10 speed up thereby releasing approx 20K more applications. (Source trackitt data w some statistical calculations). So the bad news is that;s what prevented overall SOFAD from being bigger. Unfortunately we may see some of the remaining ROW demand flow through in 2011 which has the potential to prevent any FA to IC.

Another reason SOFAD was limited was because of EB1, EB1 saw 41K approvals and only yielded 2K of its own plus 9K from EB5. So EB1 also didn't yield 24K that we thought it would.

[GK1234]

Q/Spec/Veni or others,

Novice question : The annual limit for employment based category visa numbers are 140K, is that correct? If yes, under forum 485 Data and Calculations - CREDIT to VENI, how come the totals exceed 140K for each year. Where from the additional numbers coming from? Do we have a handle on how many more we may get for 2011. Thanks so much....

[veni001]

Q/Spec/Veni or others,

Novice question : The annual limit for employment based category visa numbers are 140K, is that correct? If yes, under forum 485 Data and Calculations - CREDIT to VENI, how come the totals exceed 140K for each year. Where from the additional numbers coming from? Do we have a handle on how many more we may get for 2011. Thanks so much....

GK1234,
Here are the congressional numerical limits on both FB & EB (assuming all VISAS will be used in that FY)
FB = 226k
EB = 140k

But when determining EB limit for a FY, it is 140K+unused FB VISAs from prior year!
Similarly FB limit for a FY is 226k+unused EB VISAs from prior year!

[GK1234]

Question - When is a visa number allocated to a PWMB case? Is it allocated after the PD becomes current and I485 paper work is processed and is ready to be approved? Is yes, Does not it take few months atleast to process the case? In that case why should it be considered for EB predictions and calculations? Thanks...

Answered by Q -

GK firstly PWMB cases are no different from any other 485 cases in terms of visa allocation. In fact PWMB is our term. USCIS doesn't use any such term.
1. Any freshly filed 485 case will have its date current when filed (without which filing is not possible today).
2. Then the case will be preadjudicated regardless of whether date is current.
3. If the case continues to be current a visa number will be allocated. If NOT it will be allocated when teh case becomes current. (ie. when the PD becomes current).

Any 485 case on an average takes at least 3 months (for ROW) so no PWMBs with date later than oct 06 have much of a chance of getting a number this year given that next month we will enter the last quarter. (of course a few cases will sneak by though).

Additional Information Added by Spec

At the time the case is successfully adjudicated, USCIS will request a visa allocation from the DOS IVAMS system.

a) If the Priority Date is still Current, the visa will be allocated and the case approved.

b) If the Priority Date is no longer Current, IVAMS will not allocate the visa. However, information about the request, including Category, Country of Chargeability, and PD will be captured and appear in the following DOS Demand Data Report. The case will be considered pre-adjudicated.

At the point in the future that the PD becomes Current again, IVAMS automatically sends information to USCIS, letting them know the visa is now available. USCIS must then make the final adjudication and request final issuance of the visa to close the case out.

[Spectator]

I think it is worth explaining why I believe that spare visa that fall to EB3 will go to EB3-ROW first. I know that some people do not share this view. It may be a subject that we agree to disagree on.

The law setting out the fact that a country may not exceed 7% is given under INA 202 (a)(2):


INA: ACT 202 - NUMERICAL LIMITATION TO ANY SINGLE FOREIGN STATE

(a) Per Country Level. -

(2) Per country levels for family-sponsored and employment-based immigrants. - Subject to 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.

The law which appears to be used for spillover ( and CO quotes) says the following:


(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.

There is an argument that INA 202 (A)(5) quoted above only deals with Fall Across.

In that case INA 202 (a)(3) contains the same language.


(3) Exception if additional visas available. - If because of the application of paragraph (2) with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of section 203 for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter.

Either way, the argument below is valid.

In EB2, since Mexico, Philippines and ROW are all Current and they have no further demand, the spare visas may be allocated to EB2-IC, since there are no "qualified immigrants" who may otherwise be issued such visas.

For EB3, in contrast, Countries within EB3-ROW represent "qualified immigrants", since they have demand and they have not yet reached their own 7% limits.

Spare visas cannot be allocated to EB3-I (who have reached their 7% limit) until either there is no further demand from EB3-ROW or every Country within EB3-ROW has reached its own 7% limit.

As much as EB3-I is constrained by the 7% limit, EB3-ROW is constrained by the overall 28.6% limit of visas available to EB3.

To put this into context, in FY2010, EB3-I received 3,036 visas. Within EB3-ROW, excluding South Korea, only 5 Countries were able to receive even 1,000 visas.

Worse for EB3-I, no Countries in ROW use their full allocations in EB1/2 & EB4/5 and the 7% limit is calculated on the overall total.

For simplicity, taking 9,800 as the the 7% limit for EB, then Pakistan, who used the most EB3 visas at 1,571 only used 3,058 visas in EB overall. They could use an additional 6,742 spillover visas to reach 9,800.

Excluding South Korea, of ROW Countries, Canada used the most overall EB visas at 5,893, so even they would be able to use an additional 3,907 visas to reach the overall 7% limit.

Based on last year, even EB3-P would be able to consume more visas - they share the same Cut Off Date as ROW and are constrained by it from receiving more visas.

Some people quote INA 203(e) to justify that spare visas will be given to the earliest PD regardless.

INA 203(e) says:


(e) Order of Consideration. -

(1) Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General (or in the case of special immigrants under section 101(a)(27)(D) , with the Secretary of State) as provided in section 204(a) .

INA 203(e) provides that visas (in general) made available to ELIGIBLE IMMIGRANTS, must be allocated on a strictly PD basis. This is equally true whether we are talking about the normal allocation or otherwise unused, or spare visas, but it only applies when a group is eligible to receive the spare visas.

202(a)(5) describes WHEN spare visas can be made available to Countries who have reached their 7% i.e. when they become eligible to receive them.

[chirag.n]

Hello,

How do I find out if my case has been pre-adjudicated or not? Thanks!

Answered by Qesehmk:

This is very general question. I am going to move to FAQs. The answer is there is no way. But if you filed in Jul 2007 fiasco or earlier and you haven't heard an RFE or rejection, then more than likely you are preadjudicated.

[tomhagen]

How to Contact Your Senator ?

Below is the procedure for contacting your senator

1. Go to site:
http://www.senate.gov/general/contact_information/senators_cfm.cfm
2. Choose a State
3. Click the webform to contact them
4. In the site(it differs for each senator) look for constituent services or anything that says help with federal agency.
5. Select Immigration Privacy release form.
6. Fill the form out and create a letter.
7. Fax the following to your senator:
a. Letter
b. copy of visa bulletin
c. copy of all 485 receipts
d. copies of letters received from USCIS including e-mail conversations
e. Immigration Privacy Release Form
8. After 1 business day, call the office and see if they received the fax. Also, try to find out the name of the aide that will be working on your file.

[rocketfast]

What are INA laws around FB to EB and EB to FB spillover

* Family spillover goes to EB
* EB spillover goes to FB
https://www.qesehmk.org/forums/showthread.php/1217-EB2-3-Predictions-(Rather-Calculations)?p=64774&viewfull=1#post64774

Does this mean that spillovers that go from EB to FB can come back next year?

For all practical purposes, the numbers that go from EB to FB are gone forever. The details are here:
https://www.qesehmk.org/forums/showthread.php/1217-EB2-3-Predictions-(Rather-Calculations)?p=64819&viewfull=1#post64819

[rocketfast]

How does FB to EB spillover get distributed to different categories of EB.

Hypothetical 10,000 FB spillover to EB:

https://www.qesehmk.org/forums/showthread.php/1217-EB2-3-Predictions-(Rather-Calculations)?p=62399&viewfull=1#post62399

More details:
https://www.qesehmk.org/forums/showthread.php/1217-EB2-3-Predictions-(Rather-Calculations)?p=63144&viewfull=1#post63144