EB3 Predictions & Calculations

Spec, I have gone over this situation (Your Option 1 and 2) several times in my head and discussed with others too. USCIS is unwilling to use Filing Date and as you said, CO will basically have to use Final Action date as he was using before - move it aggressively one month to generate demand and then retrogress. Similar to what he did in the past when there was no Filing Date. I have a very good feeling it will come to that.

Giving USCIS any sort of power in the Visa Bulletin is a disaster. They control Filing Date and hence, it is non-existent at this point. It seems they do not like the Filing Date concept and wants to do away with it and at this point, I too think it is best if it goes away.

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Originally Posted by Spectator

Over the last 5 years (FY2011-FY2015) EB3 has received 10.3k less visas than their allocation. When you don't get any FD from other categories, that's a big deal.

EB3-ROW have been the biggest "victims" in terms of lost visas. Excluding last FY when it can be argued EB3-ROW were effectively Current for half a year, the shortfall over the previous 5 years (FY2010-FY2014) is 36.1k against their nominal allocation. That's about 18 months worth of EB3-ROW average approvals.

That's huge, not only for ROW, but for EB3-I as well. With no vertical spillover, EB3-I rely on FA within EB3 for extra visas. Had ROW received all the visas due, they would have become Current much earlier and EB3-I would have been receiving FA for longer.

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Why does this make me feel that YT's calculations were too pessimistic? :)

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Originally Posted by Spectator

gcq,

If you had said CO seems to have a positive bias towards EB3-P (and EB3-M previously as well), then I might agree. ......

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Wasn't this according to the law ( The total usage across FB and EB for a country to calculate 7% ). If it was as per law, can we complain bout CO ? Sure there are lot of unfair things in immigration law. However we can only blame the law in that case. If CO uses his discretionary power to favor a group, then only we can blame CO.

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Originally Posted by Spectator

Realistically, there's limits to how high the other EB3 Countries can go and an absolute minimum number of extra visas that will become available to EB3-I.

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Maybe CO has not made that estimate yet waiting to give every possible GCs to ROWs. Do we have an idea on the estimate, an absolute minimum number of visas that will be available to EB3I?

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Originally Posted by gcq

Wasn't this according to the law ( The total usage across FB and EB for a country to calculate 7% ). If it was as per law, can we complain bout CO ? Sure there are lot of unfair things in immigration law. However we can only blame the law in that case. If CO uses his discretionary power to favor a group, then only we can blame CO.

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gcq,

I take your point, but it seems CO is using a bastardized system that is a hangover from the old spillover allocation system. AC21 introduced new laws on how under use in a Category should be dealt with. It ensured that the full legally mandated allocation for a Category would be reached (as long as there was any demand) by allowing Countries that had reached the 7% limit to consume visas over that limit. It made the old spillover practice redundant and incompatible.

Under the old system, extra allocation effectively also fell down to EB3 with the extra available visa numbers (i.e. the overall limit was effectively raised and the limit from where the visas came from was reduced), so the application of the overall 7% interpretation had no adverse effects on other Countries.

Now we have a situation where (as an example) if EB2-P uses 1.5k less visas than their EB2 allocation, then CO gives that shortfall to both the most retrogressed Country in EB2 (EB2-I) and to give extra visas to EB3-P.

The shortfall is only 1.5k, but 3k of visas are reallocated to other Countries. The only way to balance the books is to reduce the EB3-ROW allocation.

In the example, the 1.5k shortfall should either be allocated to EB2-I (which appears to be the correct treatment since AC21), or allocated to other Philippines categories, but not both at the same time. If the spare visas are mandated by law to be allocated to EB2-I, then they have been used (EB2-P has effectively used its entire allocation) and there are no spare visas left for EB3-P under the overall 7% limit. You can't use something twice at the same time.


If the current practice is to be used, then it should be used consistently.

It doesn't appear that CO is using the same logic for El Salvador, Guatemala and Honduras under EB4.

None of those Countries use anywhere near the 7% limit (8.4k, 4.1k & 3.3k vs the 26.0k overall 7% limit in FY2015 and 1.3k, 1.5k & 1.1k vs the 10.1k EB 7% limit in FY2015).

Between them, they could probably use the entire EB4 allocation for FY2016 plus some. If the same logic as is used for Philippines (or South Korea for that matter) was applied, then those 3 Countries should be able to continue using EB4 visas until the total EB4 allocation was exhausted (in this case, that would happen well before they could reach the 7% limit). At that point, the whole of EB4 would become Unavailable.

Alternatively, the same logic as is being applied to the 3 EB4 Countries should also be applied to Philippines et al.

Seems like double standards to me. CO can't pick and choose how he wants to deal with the same situation depending on the Country involved.

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Originally Posted by EB3Iwaiting

Maybe CO has not made that estimate yet waiting to give every possible GCs to ROWs. Do we have an idea on the estimate, an absolute minimum number of visas that will be available to EB3I?

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EB3-I and other retrogressed countries can claim a minimum of 7% total EB3 quota ( assuming retrogressed countries have earlier PDs) which equates to around 2800 visas annually. On the other hand EB3-ROW ( assuming that they have the newest PDs) can claim all of the remaining visas. As for EB3-I, minimum is guaranteed as they have oldest PDs. Whereas EB3-Philippines, EB3-South Korea are still considered ROW as their total usage in FB + EB is way below the total 7% of total FB + EB visas. So EB3-SK etc takes up standard EB3-ROW visas as they have older PDs. So EB3-SK etc uses way more visas in EB3 category compared to EB3-I or EB3-ROW.

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Originally Posted by Spectator

gcq,

.................

Seems like double standards to me. CO can't pick and choose how he wants to deal with the same situation depending on the Country involved.

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Totally understand. If that is the case, we should raise it to CO and administration about this inconsistency. I always believed CO is either confused and/or biased in interpreting the law.

An old story, but this is how I figured out CO has a bias:
I had an opportunity to talk with CO regarding under allocation of visas to EB3-I in 2009. Then he maintained it is a "limit" and not a "quota" as far as retrogressed countries are concerned. I corrected him pointing to relevant portions of INA which confirmed it is a quota though it is not mentioned by that name. Throughout the conversation he was "concerned" that he would under allocate for EB3-ROW if he allocated for EB3-I in advance.

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Originally Posted by Spectator

Had ROW received all the visas due, they would have become Current much earlier and EB3-I would have been receiving FA for longer.

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Respectfully Spec, unlike their India counterparts ROW didn't receive their due visas because of lack of visas or wastage of visas. Their applications simply weren't ready to be adjudicated.

EB3-I are being robbed of due visas by not applying quarterly spillovers. ROW is not in that situation at all.

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Originally Posted by qesehmk

Respectfully Spec, unlike their India counterparts ROW didn't receive their due visas because of lack of visas or wastage of visas. Their applications simply weren't ready to be adjudicated.

EB3-I are being robbed of due visas by not applying quarterly spillovers. ROW is not in that situation at all.

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Respectfully Q, that's just not correct.

EB3-ROW did not receive as many visas as they might have done in most years because their allocation was reduced due to additional visas being given to EB3-M and/or EB3-P and due to wastage against the overall EB3 allocation.

This happened consistently at a time when EB3-ROW was retrogressed by several years (as much as 7 years). Had the visas been available, the Cut Off Date for EB3-ROW could have been set well in advance of the date it was set.

It wasn't due to lack of demand for the majority of the time. As such, there probably wouldn't have been any quarterly spillover available.

Lack of demand was a factor in FY2013, when the EB3-ROW COD surpassed July 2007 for the first time.

In FY 2013, EB3-I received Fall Across solely because CO failed to advance the ROW Cut Off Dates sufficiently, or in a timely manner to allow cases to be adjudicated within the FY. The latest COD reached in FY2013 was still more than 3 years retrogressed.

As a result, EB3-ROW fell 9.1k short of the allocation they should have received in FY2013. Even allowing for Philippines, they fell 6.6k short. EB3-I received 4.6k more than their initial allocation. EB3 as a whole fell 1.6k short of their allocation.

Whichever side of the argument you prefer, I'm struck that there is a certain irony that the failings in the control of visa allocation process that have affected EB3 are also the very same ones that have benefited India the most.

EB has received around 49k extra visas from FB in the period FY2010 to FY2015. Of these, EB2-I has benefited by something around 30k extra visas directly attributable to those extra FB visas.

In a situation where the visa allocation was controlled properly, there would have been zero spare FB visas over that time period, since all FB categories and Countries have been almost perpetually retrogressed.

Only F2A has ever becoming Current in recent times (for a whole 2 months at the end of FY2013 when CO completely misjudged demand). Even then, FB has it's own system for Fall Down of otherwise unused visas, so there should never be any lack of demand within FB as a whole.

DOS can't blame USCIS for those failings, given that around 90% of FB cases are approved at Consular Posts.

Well Spec. You have a treasure trove of data and analysis. So I wouldn't argue with you and I respect your judgement.

I have stopped manual analysis for long now. So my judgement is based on past understanding and how EB3ROW has progressed and cleared backlog at PERM 140 and 485 level. It looks eeringly designed to stop India from benefitting.

Secondly i have strong reasons to believe that EB2-3 portings within India probably are resulting in loss of visas. Why? Because the actual approvals fall short of the implied visa usage. Why don't we see appropriate decreases in inventories that are very old (in other words with age the inventory is not going to increase at all with any possible people missing bus).

This makes me believe that for ported candidates USCIS is allocating visas twice and thus resulting in wastage. I think immigrants should request an audit of a few ported cases and verify if these fears are true or false.

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Originally Posted by Spectator

Whichever side of the argument you prefer, I'm struck that there is a certain irony that the failings in the control of visa allocation process that have affected EB3 are also the very same ones that have benefited India the most.

EB has received around 49k extra visas from FB in the period FY2010 to FY2015. Of these, EB2-I has benefited by something around 30k extra visas directly attributable to those extra FB visas.

In a situation where the visa allocation was controlled properly, there would have been zero spare FB visas over that time period, since all FB categories and Countries have been almost perpetually retrogressed.

Only F2A has ever becoming Current in recent times (for a whole 2 months at the end of FY2013 when CO completely misjudged demand). Even then, FB has it's own system for Fall Down of otherwise unused visas, so there should never be any lack of demand within FB as a whole.

DOS can't blame USCIS for those failings, given that around 90% of FB cases are approved at Consular Posts.

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Originally Posted by gcq

EB3-I and other retrogressed countries can claim a minimum of 7% total EB3 quota ( assuming retrogressed countries have earlier PDs) which equates to around 2800 visas annually. On the other hand EB3-ROW ( assuming that they have the newest PDs) can claim all of the remaining visas. As for EB3-I, minimum is guaranteed as they have oldest PDs. Whereas EB3-Philippines, EB3-South Korea are still considered ROW as their total usage in FB + EB is way below the total 7% of total FB + EB visas. So EB3-SK etc takes up standard EB3-ROW visas as they have older PDs. So EB3-SK etc uses way more visas in EB3 category compared to EB3-I or EB3-ROW.

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gcq,

I've stated many times that I believe the 7% limit should be calculated separately for EB and FB. The law's wording is ambiguous at best. A category approach is best suited to the current laws.

You stated:

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On the other hand EB3-ROW (assuming that they have the newest PDs) can claim all of the remaining visas.

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It's very easy to think of ROW in the same terms as a Country, but it's not. The term encompasses 165-170 individual Countries and Territories that received a visa in EB2 or EB3 in FY2015. ROW has less than 10x the number of visas available to it in EB3 than 2.8k available to the individual retrogressed Countries. The number left isn't many when you consider the number of Countries it has to service. Other than South Korea, no other Country within ROW comes close to approaching the 2.8k number in EB3 (or EB2 for that matter). In EB3, other than SK, only about 4 other countries break the 1k barrier in a normal year.

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Originally Posted by gcq

Totally understand. If that is the case, we should raise it to CO and administration about this inconsistency. I always believed CO is either confused and/or biased in interpreting the law.

An old story, but this is how I figured out CO has a bias:
I had an opportunity to talk with CO regarding under allocation of visas to EB3-I in 2009. Then he maintained it is a "limit" and not a "quota" as far as retrogressed countries are concerned. I corrected him pointing to relevant portions of INA which confirmed it is a quota though it is not mentioned by that name. Throughout the conversation he was "concerned" that he would under allocate for EB3-ROW if he allocated for EB3-I in advance.

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gcq,

Interesting story.

You'll have show me the relevant portions as well.

A quota implies an entitlement. A limit implies a maximum number.

The INA mentions a limit (or level) everywhere I look.

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

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(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.

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Since AC21, it's not even a hard limit and since the same limit applies equally to every Country, it can't be described as discriminatory either. I can understand why some people feel it is unfair, but that is a quite different term.

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Originally Posted by Spectator

gcq,

Interesting story.

You'll have show me the relevant portions as well.

A quota implies an entitlement. A limit implies a maximum number.

The INA mentions a limit (or level) everywhere I look.





Since AC21, it's not even a hard limit and since the same limit applies equally to every Country, it can't be described as discriminatory either. I can understand why some people feel it is unfair, but that is a quite different term.

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Reading INA it is very easy to get misled into believing that it is a limit because the word limit is seen everywhere. If we were to just read those lines, we would believe it is a limit.

However the following makes the limit a quota:

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https://www.uscis.gov/ilink/docView/...html#0-0-0-180

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.

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This is the very first clause in the section that deals with numerical limitation. What this sentence says is unless and until this limit (7%) is reached, no person should be discriminated based on country of birth among other things. So unless and until CO has already allocated 7% for a retrogressed category, visa allocation should be done purely based on PD. So ROW, retrogressed etc doesn't exist at the beginning of the year. What CO was doing was giving priority to ROW ( which has later PD than India etc) over India even before allocating the 7% to India based on perceived demand. In 2009 India and China received less than their 7% "quota".

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Originally Posted by Spectator

Respectfully Q, that's just not correct.

EB3-ROW did not receive as many visas as they might have done in most years because their allocation was reduced due to additional visas being given to EB3-M and/or EB3-P and due to wastage against the overall EB3 allocation.

This happened consistently at a time when EB3-ROW was retrogressed by several years (as much as 7 years). Had the visas been available, the Cut Off Date for EB3-ROW could have been set well in advance of the date it was set.

It wasn't due to lack of demand for the majority of the time. As such, there probably wouldn't have been any quarterly spillover available.

Lack of demand was a factor in FY2013, when the EB3-ROW COD surpassed July 2007 for the first time.

In FY 2013, EB3-I received Fall Across solely because CO failed to advance the ROW Cut Off Dates sufficiently, or in a timely manner to allow cases to be adjudicated within the FY. The latest COD reached in FY2013 was still more than 3 years retrogressed.

As a result, EB3-ROW fell 9.1k short of the allocation they should have received in FY2013. Even allowing for Philippines, they fell 6.6k short. EB3-I received 4.6k more than their initial allocation. EB3 as a whole fell 1.6k short of their allocation.

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Bottomline, it is gonna be 2 more months of waterboarding for EB3I Guys..EB2I was a foregone conclusion..they are hosed this year.

Like to add the following points:

Spec,
When you consider the unfairness to ROW, you are overlooking one critical factor when comparing ROW to India. They are not apples and apples. ROW pd is much later than India applicants. So even if they received more visas, it is still fair, because they were in the queue years earlier :-)

Also regarding the assumption that India received more visas in 2013, I am curious how you guys arrived at that conclusion. If it was based on advancement of PD and hence assuming that all the inventory in that duration was allocated a visa, it could be wrong. Lot of EB3-I ported to EB2-I. When USCIS took up the supposedly EB3-I application, they would have figured out that candidate has already ported. So they moved on to the next EB3-I without approving that ported application. However when we look from outside, we may feel that inventory got cleared by actually allocating a visa and hence the assumption that more visas were allocated to EB3-I. I am not an expert, just a thought.

I have seen lot of comments on EB3-I movement this year FY'16.
Most have said that it is expected to move starting from July/Aug/Sept.
Can we expect the final action date to move at least to July 01 2005 (the filing date announced in Oct'15.)
Also please reply - do you see chance of rollback in Oct again like last year.

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Originally Posted by GCwaiting

I have seen lot of comments on EB3-I movement this year FY'16.
Most have said that it is expected to move starting from July/Aug/Sept.
Can we expect the final action date to move at least to July 01 2005 (the filing date announced in Oct'15.)
Also please reply - do you see chance of rollback in Oct again like last year.

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final action dates for eb3 I should move into 2006 (possibly 2007 but that's a lower chance)

I don't think that's a possibility now. If it is to move to the end of 2006 then USCIS should have sent RFEs at least till end of 2005 by now.

Thanks

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Originally Posted by Suva2001

I don't think that's a possibility now. If it is to move to the end of 2006 then USCIS should have sent RFEs at least till end of 2005 by now.

Thanks

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True - the lack of rfes are concerning. But the applications are all in the system - a rfe even in May
With June deadline can ensure that a visa number is alloyed in August or September to the case.


A friend of mine received his rfe (eb2 case) early February with a March deadline. He sent in the Medicals end of feb and was approved mid March (with card in hand). So I won't lose hope yet

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Originally Posted by vishnu

True - the lack of rfes are concerning. But the applications are all in the system - a rfe even in May
With June deadline can ensure that a visa number is alloyed in August or September to the case.


A friend of mine received his rfe (eb2 case) early February with a March deadline. He sent in the Medicals end of feb and was approved mid March (with card in hand). So I won't lose hope yet

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I am with you Vishnu. Atleast EB3 I should move to mid 2006. I am still hopeful. I will be concerned in June if I do not see any RFEs even after reaching June end. Because by the beginning of June (before they publish the July VB -first bulletin of last quarter) they should assess the SO. They should have clear picture by then. Most of the EB3 I apps are preadjudicated. The only RFEs they are receiving are for EVL,MOS and medicals which are pretty straight forward. I don't think there will be any pending background checks which usually take long time.

By this logic I am still hopeful that EB3 I might move into 2006.

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Originally Posted by Suva2001

I don't think that's a possibility now. If it is to move to the end of 2006 then USCIS should have sent RFEs at least till end of 2005 by now.

Thanks

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what is the logic behind not generating RFEs for 2005 and/ or 2006 cases till now? Do they intend on wasting visas when people are in line for over a decade?

Like some others, I too have a sense of disquiet about the EB3-I situation to date. It's an overall feeling, borne out of a number of factors.

a) The Filing Date is supposed to represent where the Final Action Date might reach by the end of the FY. It's been stubbornly set and unmoving at 01JUL05 for EB3-I for the entire FY to date.

b) The above gives USCIS a perfect excuse not to deal with EB3-I cases beyond that date. They'll just blame DOS for not warning them in time.

c) Currently, for USCIS to deal with later cases, it would require them to make an independent executive decision to do so - creating more work for themselves. That would be a first (I know - I'm cynical).

d) It may seem there is still a lot of time left in the FY, but it can be frittered away quite easily. There are multiple steps, all of which require time to complete - cumulatively, it can add up:

i) It's quite possible, given the pace of COD movement for EB3-I in recent years, that the later cases aren't even physically located at the Service Centers and would need to be requested and shipped from satellite storage facilities.

ii) Once received, the cases would need to be sorted and staged at the SC.

iii) The cases can then be allocated to ISO for adjudication or preadjudication along with all the other cases they are already dealing with.

**) Most cases would need the IBIS name check to be rerun, since it is only valid for 180 days. No biggie since that should complete fairly quickly for the vast majority of cases and in parallel with the other steps.

v) Most cases would receive an RFE for EVL, Maintenance Of Status (MOS) and a new I-693. This would be sent to the attorney of record in most cases.

vi) Time for attorney to receive the RFE, process it and send it to the applicant with a list of required information to be returned.

vii) Time for applicant to gather required information, get a new I-693 and return to attorney.

viii) Time for attorney to review applicant response and return to the SC.

ix) Restaging at SC and eventually allocation to an ISO.

x) Inspection of RFE response and final decision by ISO.

It's likely that a large number of cases will be claiming 204(j) portability to "same or similar" jobs. Given the extended time that has passed, some of these may be edge cases that need careful consideration. Again, given the time period, more than usual may be relying on 245(k) for status or employment issues. Complications make the process longer.


I feel that CO needs to move the Filing Date for EB3-I considerably in the June VB, even if the FAD only moves as normal. We know USCIS won't accept it to allow new filings, but it would send a message that USCIS need to deal with later PD applications. Until now, the consistent official message has been that EB3-I will only reach the end of June 2005. Unless there is something we are entirely unaware of, that needs to change sooner rather than later.

there you go..now i am even more confident they will waste visas..why doesnt the CO just move the Final dates???

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Originally Posted by anuprab

there you go..now i am even more confident they will waste visas..why doesnt the CO just move the Final dates???

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spec: last year some spillover from eb3 row went to eb2 I rather than eb3 I...it wasn't direct, but a result of the EB2 I overallocation at the start of the year (and hence eb2 row needed to be 'funded' to ensure their quota was utilized)

so can CO possibly use eb3 row spill over visas for eb2 india again? clearly not as per the book, but he did it last year?