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I have been a silent follower of this thread. Had few questions so thought of posing them to Gurus
1. Any way to know how many EB1 visas have been used for this year?
2. How can CO say that there will not be any more movement this year? My understanding is that Q4 quota of EB1 should still be available and there could potentially be spillover?
3. When do you guys think EB2I Nov 2008 will be current? I know it is very difficult to answer but just trying to figure out options.
Spec, one question. I understand the cut-off date for individual countries Philipines, Mexico or S. Korea etc. but how can there be a cut-off date for entire ROW ? If the limits are at country level then shouldn't limits be set for each country exceeding its limit keeping the remaining (ROW) current.
Quote:
Originally Posted by Spectator
I too have the same question. If more applications come from one country and reached it's quota that particular country dates should be set behind. I guess that's how India and China got separated from ROW. Please correct me if my assumption is wrong.Quote:
Originally Posted by GhostWriter
I will give you my 2 cents and Spec can answer perhaps better. But basically the law doesn't prescribe which countries and how they become eligible for cut off date.
USCIS is the "decider" there. They try to adhere to the law by enforcing cut off dates on individual countries or categories. So in other words it is completely discretionary on USCIS' part to pull out or NOT one country out of ROW and enforce cutoff dates. Case in point is - "Haiti after the earthquake" had tons of people trying to relocate to US. So USCIS imposed an FB Haiti quota by pulling it out of ROW.
On the other hand S Korea is consistently utilizing more than 7% of EB2 and Canada and UK are consistently utilizing more than 7% of EB1 - yet they are NOT pulled out of ROW for either of those categories. The reason sighted is that 7% there is considered 7% of EB+FB together. Again - that is an interpretation of USCIS. Law doesn't talk about it eitherway.
So unless law becomes prescriptive - USCIS is really the final jury judge and executioner of this.
p.s. - Above USCIS is really a combination of USCIS+DOS. I am not sure between the two who drives whom and what is the level of coordination.
Quote:
Originally Posted by GhostWriter
GhostWriter,Quote:
Originally Posted by GhostWriter
DOS, through the Visa Office, control the Supply of Visas and set the Cut Off Dates based on the Demand. USCIS only generate (part of the) Demand against the available Supply of Visas.
A Cut Off Date may be necessary for one of 2 reasons:
a) To control available Visa numbers against a Country's numerical limit. We are all familiar with this, as it affects, or has affected China, India, Mexico and Philippines.
b) To control available Visa numbers against the overall number available to a Category (EB1, EB2 etc.).
This is the reason EB3 is retrogressed for all Countries. China and India (and Mexico and Philippines from time to time) are retrogressed due to per Country limits, while all other Countries are retrogressed due to the finite number of visas available to EB3 (40k).
It is (b) that would be in effect IF a Cut Off Date needs to be established for EB2-WW.
There are only a finite number of visas available to EB2, comprising the initial 40k plus any Fall Down from EB1.
Using an example (with hypothetical numbers), let's say there are 50k total visas available to EB2 this year. Let's further say that EB2-IC have already used 25k before becoming Unavailable.
If EB2-WW (ROW,M & P) have a demand of more than 25k in FY2012, then there will not be enough available visas to cover the demand. In that case, a Cut Off Date would have to be established to control the numbers.
That Cut Off Date would apply to all Countries within EB2-WW, since none would have actually reached their individual numerical limit.
If a Country within EB2-WW did reach its numerical limit, it would have its own Cut Off Date set and be shown separately in the VB. Leaving South Korea aside, this is very unlikely. In FY2010, the highest number of visas in EB2 went to Philippines with 2,162 followed by Canada with 1,705.
Even if the 7% were within Categories, which it is not, then there is still quite a buffer before reaching that figure.
In EB1, only China, India and Great Britain exceeded the nominal 7% figure in FY2010. That has not been a problem to date, because there has always been sufficient spillover visas (both Fall Across and Fall Up) to accommodate this overuse.
As Q explained, the 7% is not calculated within each Category, but is 7% of the total FB & EB across all FB and EB Categories. This figure of 25,620 is mentioned in every Visa Bulletin.
So South Korea, who received about 8% of EB visas in FY2010 (about 9% in EB2), only received about 4% of overall FB & EB visas. They therefore did not exceed the 7% limit and a separate Cut Off Date was not required.
I would disagree with Q - it is mentioned in the INA and does appear to reflect this interpretation. Personally, I do think (wish) it should operate at least at EB level, if not even at a Category level. It would remove some of the Current inequities.
Spec, Q - Thanks for your explanations. Very helpful, i think i understand it now.
So country limit is 7% (EB + FB) for a country.
And the category limit for ROW can be required if a particular category EB2-ROW or EB3-ROW exceed the numerical category limit which as Spec explains can happen even with all the individual countries being with in the country limit.
So CM, in the link you posted Spec, is expecting Mexico and Philipines which already are exceeding their country limits (since they have cut-off dates for EB3 and FB) to also have a cut-off date for their EB2 now.
But more importantly he is expecting EB2-ROW to exceed its numerical limit. Spec, you were the first one to predict 2-3 months ago that EB2-ROW can have a cut-off date, much before it was hinted in the June VB and now consensus seems to be headed in that direction.
Q has a contrarian view this time and expects EB2-ROW to escape cut-off.
Kudos to both of you for your great analysis. Having either of the view requires great grasp of things and your analysis is very helpful in understanding things for people like me.
Quote:
Originally Posted by Spectator
Spec thanks. First I must say I meant USCIS+DOS when I said USCIS above.
Although DOS controls visa, I have come to the conclusion that the retrogression of country or category is not solely decided by DOS.
Regarding 7% as a limit over EB+FB, where in INA it is mentioned?
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Originally Posted by Spectator
Q, the per country limitation reference is here....Quote:
Originally Posted by qesehmk
INA: ACT 202 - NUMERICAL LIMITATION TO ANY SINGLE FOREIGN STATE
Sec. 202. [8 U.S.C. 1152]
(a) Per Country Level. -
(1) Nondiscrimination. -
(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.
http://www.uscis.gov/portal/site/usc...90aRCRD&CH=act
Kanmani if we go by this language then this read to me 7% is to be applied at subsection level viz. family employment and diversity. At least it doesn't specifically say whether it;s a combined limit.Quote:
Originally Posted by Kanmani
Q,Quote:
Originally Posted by qesehmk
While I agree there is sufficient ambiguity in the exact wording to interpret it that way as well as how it is currently interpreted, that is not how it is has ever been interpreted.
To be unambiguous, it would have to say something like under each subsection. The plurality allows the meaning to be the totality i.e. "the visas made available under such subsections can be construed to mean the total made available under both subsections combined.
In every Visa Bulletin is this explanation.
I don't see any prospect whatsoever of this being changed.Quote:
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
Having the 7% limit apply to the total FB & EB visas also allows Countries to receive more FB visas than they otherwise could do so, where the Country has a low usage of EB visas.
In FY2010, Mexico, Dominican Republic, Vietnam, Philippines & India all received more visas than the notional 7% of 226,000 (15,820).
Although there are additional reasons for this (such as special rules for F2A), the Dominican Republic couldn't possibly have received 30.9k FB visas, or Vietnam 20.9k FB visas if the 7% limit had been applied purely against the FB allocation. I guess here would be political forces arguing against a change to the interpretation as well as for it.
Q, As per Act 202 of INA "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"Quote:
Originally Posted by qesehmk
So it is the total of immigrants coming under 203(a) + 203(b).
INA: ACT 203 - ALLOCATION OF IMMIGRANT VISAS
Sec. 203. [8 U.S.C. 1153]
(a) Preference Allocation for Family-Sponsored Immigrants.
(b) Preference Allocation for Employment-Based Immigrants.
Spec I don't disagree that that's how it was interpreted. I was only making a point that there is room for interpretation.
Kanmani - I think I would agree about ambiguity with Spec. But I do not think it is cut and dry as you imply below. So lets agree to disagree.Quote:
Originally Posted by Spectator
Quote:
Originally Posted by Kanmani
Q, Last but not the least :)Quote:
Originally Posted by qesehmk
http://www.uscis.gov/portal/site/usc...0048f3d6a1RCRD
The maximum number of family-sponsored and employment-based preference visas that can be issued to citizens of any country in a fiscal year. The limits are calculated each fiscal year depending on the total number of family-sponsored and employment-based visas available. No more than 7 percent of the visas may be issued to natives of any one independent country in a fiscal year; no more than 2 percent may issued to any one dependency of any independent country. The per-country limit does not indicate, however, that a country is entitled to the maximum number of visas each year, just that it cannot receive more than that number. Because of the combined workings of the preference system and per-country limits, most countries do not reach this level of visa issuance.
Kanmani
What you site now is interpretation not law. What you sited earlier was the law. The law is ambiguous ... USCIS/DOS's interpretation is not.Quote:
Originally Posted by Kanmani
Q, i agree with Kanmani. The "total number" referring to sum of the subsections EB and FB actually makes it unambiguous. So the limit is 7% of total of EB and FB and has to be compared with total of EB and FB for a country. (see the portion in red).
(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.
Quote:
Originally Posted by Kanmani
Ghostwrite - I have 2-3 arguments.
1. The header talks about Levels ie. plural.
2. The language in the law is quite strange - Total of Total.... what that means?
3. Most importantly - and you can forgt the first two points above - the law talks about a cap - not entitlement. USCIS itself makes it many times clear that 7% itself is cap not entitlement. But the way USCIS/DOS implement the law is they treat 72% for ROW as entitlement and accordingly set the dates. And then move the dates accordingly.
Yes.... as Spec pointed out the behavior/interpretation is consistent. However that doesn't mean that's exactly what the law says. Makes sense?
Quote:
Originally Posted by GhostWriter
Q
1. The plural in the header (per country levels), i think, could refer to the two levels - one for single foreign state (7% level) and the other for dependent area (2% level).
2. I did not find total of total. It says total visas for a country under EB and FB may not exceed total visas under EB and FB.
3. I agree with your third point. Actually strictly speaking 7% is not even being used as a limit. So spillover is calculated assuming 72% as an entitlement for ROW (which actually comes by using 7% as limit for other countries-I,C,M,P) and once spillover is applied, the countries receiving spillover can actually get more than 7% of the visas so nothing goes waste (i must state i am happy it is that way before people jump on me).
Quote:
Originally Posted by qesehmk
Q, I agree with your point. The law itself is slightly misleading .
Q,Quote:
Originally Posted by qesehmk
Now you are getting really mixed up.
You appear to forget that the 72% as you call it (100% minus 4 x 7% presumably) is actually comprised of around 160 Countries, each of which do not reach their own individual 7% cap. They are entitled to use the remaining numbers under those circumstances if there is sufficient Demand.
In fact, ROW does not receive even close to 72% in any of the EB1 to EB3 Categories.
In EB1 & EB2, only 2 Countries reach the 7% cap (India & China).
In EB1 and EB2 demand from non IC Countries, let alone ROW alone, does not usually even reach 72% (it's about 64% for ROW/M/P before spillover), allowing Fall Across within both EB1 and EB2 and Fall Down from EB1 to EB2. This keeps EB1 Current for all Countries and EB2 Current for most Countries.
In EB3, ROW only receives about 60% despite having far more demand because Mexico and Philippines both exceed the notional 7% limits within the Category (in FY2010 they used 26.84% of EB3 visas issued between them).
Clearly, with a 6 year retrogression for ROW in EB3, ROW has demand for far more visas than the number they received, but are constrained by the overall number of visas available to EB3.
In FY2010 ROW received the following % of visas issued:
EB1 - 61.67%
EB2 - 45.34% (56.69% of original allocation)
EB3 - 57.34%
I'm sorry, but your argument is totally fallacious.
Q,
I would like to weigh in on visa office's argument that "7% is a limit not a quota".
Reading a section of a law may give this impression. In fact visa office has been relying on this theory. They are wrong. Here is why
1.
Reading the 7% limit section along with 202.a, the opening section of the law will clearly indicate that 7% is practically a quota. When India has an older PD than ROW, visa office cannot allocate visas to ROW before exhausting the 7% allocation to India.Quote:
Sec. 202. [8 U.S.C. 1152]
(a) Per Country Level. -
(1) Nondiscrimination. -
(A) Except as specifically provided in paragraph (2) and in sections 101(a)(27) , 201(b)(2)(A)(i) ,
and 203, no person shall receive any preference or priority or be discriminated against in the
issuance of an immigrant visa because of the person's race, sex, nationality, place of birth,
or place of residence.
For a detailed understanding of the issue, please refer to this document prepared by a couple of EB3 applicants to visa office
http://www.immigrationhope.org/actio...20Dates%20.doc
Spec - you know very well where i stand on immigration overall. I think there should be no quota it should be purely driven by PERM labor conditions in the market. At least there should be no country quota AND overall numbers must be doubled or even triple (simple logic being - today 1M people immigrate. That is 0.3% of current population. Thereby 0.3% addition to GDP. The target should be at least 1% of GDP growth based on immigration alone.).
Whatever you are writing below are facts that I am not disputing. I am talking about visa allocation logic of USCIS/DOS being convenient to suit their political objectives. I do not think that the laws are prescriptive enough NOR simple enough. This has led to USCIS/DOS interpreting them at their own discretion. Vertical vs Horizontal spillover e.g. had to be finally straightened out by AC21. The USCIS/DOS wouldn't budge otherwise. With that I think majority of EB2/3/IC problems were solved.
I was only talking about how USCIS interprets the laws and not necessarily advocating for or against it. Of course I would be happy if they were to treat 7% as country limit within individual categories within each subsection.
Quote:
Originally Posted by Spectator
gcq - yes 7% is practically a quota. Problem comes when somebody like S korea steals 5K visas for cases filed 5 months back and EB2IC cases are waiting for 3-5 years.Quote:
Originally Posted by gcq
As per your assertion above - I think that would be unfair to ROW. Besides India / China already receive more than 7%. So I don't see the point in making ROW wait on IC. Makes sense?
p.s. - Moved to this new thread. But I think we have beaten this to death!