EB2 Predictions (Rather Calculations) - 2011

Thank you Veni. This is an excellent article that lays out the reasons why EB1 is having such a difficult time this year. What is mentioned here tells you that there is a good likelihood that EB1 woes might continue into 2012. The problem lies with USCIS' stance / need to have discretion in determining whether the evidence provide by an EB1 applicant is "good enough". That "good enough" (my words) is the problem... that provides USCIS sufficient discretion.


For those who don't know what this is all about .... a brief summary -

Just a year back or so - USCIS would count the EB1 evidences and if the count was ok ... they would approve the case without (much) looking into the quality of the evidence. Then came a russian scientist/professor/researcher named Kazarian whose case was denied by USCIS because they said he failed to provide 3 counts of evidences. Courts upon examining his case directed USCIS to count evidence without checking quality and then separately do a quality check. So in essence the courts asked USCIS to not reject kazarian case because he in fact had provided 3 evidences. But courts allowed USCIS to reject kazarian case based on the quality of the evidence.

Now that's what is happening. Because of this 2 stage or 2 prong approach. USCIS is forced to do a quality check on all evidences which is delaying EB1. Additionally there are not very many good guidelines or templates for officers to determine "quality" of each evidence. So you can imagine - the officers tend to deny cases where the evidence is not overwhelming.

This situation is going to continue for foreseeable future until somebody restores sanity to this process. So EB2IC guys this is a good news to you until EB1 guys start filing in EB2!!!

Quote:

---

Originally Posted by veni001

As we have been discussing on processing delays(Kazarian guidance, memos...etc)
Read more on USCIS Open Forum Update at this link

---

Again ... its fine if somebody calculates this and incorportes in their forecast. But my "personal" tendency is to keep these kind of things out of the equation especially when they create upside to the forecast. This way if the actuals turn out better for us that is a pleasant surprise. And if the assumption doesn't hold then at least we are not disappointed.

As per 10% assumption ... that seems a bit high to me. Just gut feeling .... I don't have any solid reason to say why I think 10% is high.

Quote:

---

Originally Posted by makmohan

Q,

At least 5 of my friends here are double filers - mixed EB2 and Eb3s.

Assumption of 10% double filer estimates would only change our factor of 2.2 to 2.15 which I don't think will make a big change in our final calculations (may be I am wrong) - 90*2.2 + 10*1.73 = 198 + 17.3 = 215.3/100 = 2.153. I think 10% of EBIC being double filers is a fair assumption for several reasons.

My feeling (not backed by any numbers) is that this factor is powerful enough to cancel out any porting.

- makmohan

---

Quote:

---

Originally Posted by qesehmk

Thank you Veni. This is an excellent article that lays out the reasons why EB1 is having such a difficult time this year. What is mentioned here tells you that there is a good likelihood that EB1 woes might continue into 2012. The problem lies with USCIS' stance / need to have discretion in determining whether the evidence provide by an EB1 applicant is "good enough". That "good enough" (my words) is the problem... that provides USCIS sufficient discretion.


For those who don't know what this is all about .... a brief summary -

Just a year back or so - USCIS would count the EB1 evidences and if the count was ok ... they would approve the case without (much) looking into the quality of the evidence. Then came a russian scientist/professor/researcher named Kazarian whose case was denied by USCIS because they said he failed to provide 3 counts of evidences. Courts upon examining his case directed USCIS to count evidence without checking quality and then separately do a quality check. So in essence the courts asked USCIS to not reject kazarian case because he in fact had provided 3 evidences. But courts allowed USCIS to reject kazarian case based on the quality of the evidence.

Now that's what is happening. Because of this 2 stage or 2 prong approach. USCIS is forced to do a quality check on all evidences which is delaying EB1. Additionally there are not very many good guidelines or templates for officers to determine "quality" of each evidence. So you can imagine - the officers tend to deny cases where the evidence is not overwhelming.

This situation is going to continue for foreseeable future until somebody restores sanity to this process. So EB2IC guys this is a good news to you until EB1 guys start filing in EB2!!!

---

Q,
Agree, even lawyers are talking about post Kazarian era now!
Not only EB1 but EB2 Exceptional ability cases also affected by the USCIS Policy Memorandum resulted from USCUS vs Kazarian case.

Quote:

---

Originally Posted by veni001

Q,
Agree, even lawyers are talking about post Kazarian era now!
Not only EB1 but EB2 Exceptional ability cases also affected by the USCIS Policy Memorandum resulted from USCUS vs Kazarian case.

---

So some thoughts on this. EB1 for these exceptional aliens and EB2 exceptional ability with NIW, both of these were used by organizations like Universities, Hospitals, Non Profit Organizations, and big companies like Cisco or Qualcomm for PhD candidates, post doc grads, professors, intellecutals and so on. Now if you can't do this, you need to go through a very important step. Labor. Which means Prevailing Wage Determination by SWA and attesting to paying that. And also that implies paying a high salary, you can't escape with just anything. Also means a bonafide recruiting effort, advertising, burden of proof for legal and audit purposes.

The organizations mentioned above, except for companies like Cisco, Intel who are big in research and engineering, the universities, hospitals, Non profit's are typically now facing a new process, and something which they didn't face too much before. And they can't just go into EB2 with NIW, they will again face same scrutiny, they need to get into EB2 with Labor, just like us, if they want to reduce the evidence for exceptional research etc.

Until so far on this analysis I have put, let's keep in mind that we should not think just of Indians or Chinese, but other thousands of countries folks, like russians, europeans, who would occupy these visas. and now below an example I will give, which will show, that for a Indian, who would be in EB1 and get his GC asap, now he is into EB2, and that one EB1 visa is going to spill over into EB2.

My friend's relative, Indian, has a PhD, and got a job in Cisco for 100k. Even at this salary, for a PhD, in bay area, normally they would happily go EB1. But now they are not, they know, they can't. So they will have to go through EB2 route with Labor, not NIW.

I think that the criteria for EB1 or EB2 with NIW is quite high, which is great, but only anamoly is the multi-national manager thing in EB1, which is being exploited by some Indian companies. If you say EB1 for researchers has such high criteria, you need research papers, recognition in international journals, scholars in the field to give reference letters, etc then I don't get how a project manager in some huge indian company is level to that :) They still don't need a labor, and they get into EB1 with even 90k salary in California. That is then being unfair to the professors and PhDs!

Quote:

---

Originally Posted by nishant2200

So some thoughts on this. EB1 for these exceptional aliens and EB2 exceptional ability with NIW, both of these were used by organizations like Universities, Hospitals, Non Profit Organizations, and big companies like Cisco or Qualcomm for PhD candidates, post doc grads, professors, intellecutals and so on. Now if you can't do this, you need to go through a very important step. Labor. Which means Prevailing Wage Determination by SWA and attesting to paying that. And also that implies paying a high salary, you can't escape with just anything. Also means a bonafide recruiting effort, advertising, burden of proof for legal and audit purposes.

The organizations mentioned above, except for companies like Cisco, Intel who are big in research and engineering, the universities, hospitals, Non profit's are typically now facing a new process, and something which they didn't face too much before. And they can't just go into EB2 with NIW, they will again face same scrutiny, they need to get into EB2 with Labor, just like us, if they want to reduce the evidence for exceptional research etc.

Until so far on this analysis I have put, let's keep in mind that we should not think just of Indians or Chinese, but other thousands of countries folks, like russians, europeans, who would occupy these visas. and now below an example I will give, which will show, that for a Indian, who would be in EB1 and get his GC asap, now he is into EB2, and that one EB1 visa is going to spill over into EB2.

My friend's relative, Indian, has a PhD, and got a job in Cisco for 100k. Even at this salary, for a PhD, in bay area, normally they would happily go EB1. But now they are not, they know, they can't. So they will have to go through EB2 route with Labor, not NIW.

I think that the criteria for EB1 or EB2 with NIW is quite high, which is great, but only anamoly is the multi-national manager thing in EB1, which is being exploited by some Indian companies. If you say EB1 for researchers has such high criteria, you need research papers, recognition in international journals, scholars in the field to give reference letters, etc then I don't get how a project manager in some huge indian company is level to that :) They still don't need a labor, and they get into EB1 with even 90k salary in California. That is then being unfair to the professors and PhDs!

---

nishant2200,
Increased scrutiny not only requires labor process(EB1-->EB2) but also cost additional $$ to the employer, in most cases result in delaying the process.

Until last year EB1C usage was averaging about 55% of EB1.
EB1C misuse was across the board even though EB1IC exploited to the max due to EB2IC retrogression. I think in light of new scrutiny not only for EB1/EB2 but also on other VISAs (H1B,L1A/B, B1...ect) we should see significant decrease(EB1 usage) across the board.

At some point USCIS has to catch-up with all EB1/EB2ROW pending inventory, this could be in FY2013 or FY2014..., which may not be a good year for EB2IC counting on SOFAD.

Thanks for the info on kazarian

Quote:

---

Originally Posted by qesehmk

Thank you Veni. This is an excellent article that lays out the reasons why EB1 is having such a difficult time this year. What is mentioned here tells you that there is a good likelihood that EB1 woes might continue into 2012. The problem lies with USCIS' stance / need to have discretion in determining whether the evidence provide by an EB1 applicant is "good enough". That "good enough" (my words) is the problem... that provides USCIS sufficient discretion.


For those who don't know what this is all about .... a brief summary -

Just a year back or so - USCIS would count the EB1 evidences and if the count was ok ... they would approve the case without (much) looking into the quality of the evidence. Then came a russian scientist/professor/researcher named Kazarian whose case was denied by USCIS because they said he failed to provide 3 counts of evidences. Courts upon examining his case directed USCIS to count evidence without checking quality and then separately do a quality check. So in essence the courts asked USCIS to not reject kazarian case because he in fact had provided 3 evidences. But courts allowed USCIS to reject kazarian case based on the quality of the evidence.

Now that's what is happening. Because of this 2 stage or 2 prong approach. USCIS is forced to do a quality check on all evidences which is delaying EB1. Additionally there are not very many good guidelines or templates for officers to determine "quality" of each evidence. So you can imagine - the officers tend to deny cases where the evidence is not overwhelming.

This situation is going to continue for foreseeable future until somebody restores sanity to this process. So EB2IC guys this is a good news to you until EB1 guys start filing in EB2!!!

---

Quote:

---

Originally Posted by qesehmk

But my "personal" tendency is to keep these kind of things out of the equation especially when they create upside to the forecast.

---

I agree 100% with you as these factors can be negligible and can mess real calculations. These factors can only add some optimism which can be a pleasant surprise for us. Let's wait and watch. Thanks!

- makmohan

Q, Veni, Nishant,
I think what you guys are saying makes perfect sense. I know of two current EB1A cases of my friends that are pending o& going through RFEs (I feel there is a good chance of getting denied) that would have gotten approved 2 years back. I have seen multiple average cases getting approved in 2008 - 2009 and the catch now is the "quality" of evidence. Previously, someone with a few publications in not so high impact factor journals, few citations of his/her work and having reviewed a couple of papers have been accepted because s/he satisfied 3 criteria of i) publication, ii) others have cited his/her work and iii) the person has judged other's work. But, now these cases will almost surely be rejected. I think the big employers like Cisco, Intel, Qualcomm, Microsoft, Adobe and many others won't have issues in taking the EB2 route and based on my personal experience, they are quite stringent while applying under EB1B category. The lawyer specifically told me that unless your job is a 100% research job we can't go for EB1B; some companies use the 100% research job duties very strictly and some companies are not that stringent on this issue. I think the real problem will be for Post Doctoral researchers, research scientists in universities, etc who now have to go with EB2 option. I also do feel that number of EB2 applicants will increase. As Q mentioned, many of the EB1A, EB1B and EB2NIW will now apply under EB2 category; so, not sure at the end of the day how much beneficial it will be for EB2I/C.

Quote:

---

Originally Posted by pch053

Q, Veni, Nishant,
I think what you guys are saying makes perfect sense. I know of two current EB1A cases of my friends that are pending o& going through RFEs (I feel there is a good chance of getting denied) that would have gotten approved 2 years back. I have seen multiple average cases getting approved in 2008 - 2009 and the catch now is the "quality" of evidence. Previously, someone with a few publications in not so high impact factor journals, few citations of his/her work and having reviewed a couple of papers have been accepted because s/he satisfied 3 criteria of i) publication, ii) others have cited his/her work and iii) the person has judged other's work. But, now these cases will almost surely be rejected. I think the big employers like Cisco, Intel, Qualcomm, Microsoft, Adobe and many others won't have issues in taking the EB2 route and based on my personal experience, they are quite stringent while applying under EB1B category. The lawyer specifically told me that unless your job is a 100% research job we can't go for EB1B; some companies use the 100% research job duties very strictly and some companies are not that stringent on this issue. I think the real problem will be for Post Doctoral researchers, research scientists in universities, etc who now have to go with EB2 option. I also do feel that number of EB2 applicants will increase. As Q mentioned, many of the EB1A, EB1B and EB2NIW will now apply under EB2 category; so, not sure at the end of the day how much beneficial it will be for EB2I/C.

---

pch053,
If EB1 trend continue similar to this year( 50% or less usage) in future, then EB2 can bank on 20k from EB1 and 5-8k from EB5 every year.
Even if EB2ROW takes all spillover from EB5 due to increased filings, since EBC is getting less PERM filings,EB2I can continue to receive 20K on average every year, which could help EB2I to stick to the 5 year rule to get GC!

Quote:

---

Originally Posted by qesehmk

Thank you Veni. This is an excellent article that lays out the reasons why EB1 is having such a difficult time this year. What is mentioned here tells you that there is a good likelihood that EB1 woes might continue into 2012. The problem lies with USCIS' stance / need to have discretion in determining whether the evidence provide by an EB1 applicant is "good enough". That "good enough" (my words) is the problem... that provides USCIS sufficient discretion.


For those who don't know what this is all about .... a brief summary -

Just a year back or so - USCIS would count the EB1 evidences and if the count was ok ... they would approve the case without (much) looking into the quality of the evidence. Then came a russian scientist/professor/researcher named Kazarian whose case was denied by USCIS because they said he failed to provide 3 counts of evidences. Courts upon examining his case directed USCIS to count evidence without checking quality and then separately do a quality check. So in essence the courts asked USCIS to not reject kazarian case because he in fact had provided 3 evidences. But courts allowed USCIS to reject kazarian case based on the quality of the evidence.

Now that's what is happening. Because of this 2 stage or 2 prong approach. USCIS is forced to do a quality check on all evidences which is delaying EB1. Additionally there are not very many good guidelines or templates for officers to determine "quality" of each evidence. So you can imagine - the officers tend to deny cases where the evidence is not overwhelming.

This situation is going to continue for foreseeable future until somebody restores sanity to this process. So EB2IC guys this is a good news to you until EB1 guys start filing in EB2!!!

---

It should not have any impact for the EB2IC. Once the EB2 ROW consumes its annual quota, it has to wait for spill over from the EB1. But the spill over visas will be given to the oldest PD first. So the EB2Ic will get the visa.

Quote:

---

Originally Posted by snathan

It should not have any impact for the EB2IC. Once the EB2 ROW consumes its annual quota, it has to wait for spill over from the EB1. But the spill over visas will be given to the oldest PD first. So the EB2Ic will get the visa.

---

snathan,
EB2IC will only get spillover VISAs after satisfying EB2ROW demand!

Quote:

---

Originally Posted by veni001

snathan,
EB2IC will only get spillover VISAs after satisfying EB2ROW demand!

---

Can you explain....Shouldnt it go to olderst PD first when it comes to spill over?

Why not? this year EB2IC are benefitting from the woes of EB1. As EB1 moves to EB2 the ROW demand will be higher than usual. That's how EB2IC will stop benefitting from the kazarian situation.

Quote:

---

Originally Posted by snathan

It should not have any impact for the EB2IC. Once the EB2 ROW consumes its annual quota, it has to wait for spill over from the EB1. But the spill over visas will be given to the oldest PD first. So the EB2Ic will get the visa.

---

Quote:

---

Originally Posted by snathan

Can you explain....Shouldnt it go to olderst PD first when it comes to spill over?

---

Spec had explained this a while back and I would say jury is out on this one. But the theory is that EB2ROW doesn't spillover to EB2IC until ALL ROW countries reach their 7%. Practically EB2ROW demand finishes much before consuming their own quota and hence we haven't seen if Spec's theory is true.

Quote:

---

Originally Posted by snathan

Can you explain....Shouldnt it go to olderst PD first when it comes to spill over?

---

snathan,

Probably the best thing is to read post #16 in this thread http://www.qesehmk.org/forums/showthread.php?6-FAQs

If EB2-ROW had demand in excess of their allocation, they would be "qualified immigrants who may otherwise be issued such visas", since Countries within it would not yet have reached their individual 7% limits.

Only when demand from such cases had been satisfied can the provisions of INA 202 (a)(5) come into play which allows visas to be allocated to Countries who have reached their own 7% limit.

It is only then that the provisions of INA 203(e), which stipulates that visas are awarded "to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General" come into play for China and India.

Until that point, China and India are not eligible to receive spare visas, so it would be the earliest PDs in the pool of ROW applicants.

Just wondering what will be the conservative, realistic and maximum movement for Aug vb based on the data we have?

Quote:

---

Originally Posted by neospeed

Just wondering what will be the conservative, realistic and maximum movement for Aug vb based on the data we have?

---

neospeed,
My predictions never came true, but let me try!

EB2IC for AUG2011VB
Conservative:01JUN2007
Realistic:01AUG2007
Maximum:01JAN2008

Veni

The only thing I might wonder is whether they will move dates post Jul 2007 prior to Sep 2011? I would think they should do it either in Sep or Oct if at all they are going to do it.

Quote:

---

Originally Posted by veni001

neospeed,
My predictions never came true, but let me try!

EB2IC for AUG2011VB
Conservative:01JUN2007
Realistic:01AUG2007
Maximum:01JAN2008

---

Quote:

---

Originally Posted by qesehmk

Veni

The only thing I might wonder is whether they will move dates post Jul 2007 prior to Sep 2011? I would think they should do it either in Sep or Oct if at all they are going to do it.

---

Q,
As long as DOS/USCIS have plan to move EB2IC dates post July 2007 in CY2011 then i don't think it will make any difference if they move it in AUG Vs OCT, they would rather move dates earlier than FY start!

I think in the last 3 bulletins, roughly 24K spillovers have been used for EB2-I/C. We need another 10K - 11K spillovers to clear the pending I485 applications. To move the PDs to 1st Aug'07 (i.e. clearing almost all of the pending applications), it will be a similar forward movement (~20 weeks) like the July bulletin. If USCIS estimates that another 11K spillover is available, will they move the dates to Aug'07 in the Aug bulletin itself or will they move the dates forward by 2 - 3 months in Aug bulletin and then provide the final surge in Sep bulletin (i.e. split the movement into 2 steps). I guess no one knows the real answer but I think Q mentioned in one of the earlier posts about the pros of moving the dates to Aug'07 in the Aug'11 bulletin itself. On the flip side, if USCIS feels that there are not 11K spillovers left, they will probably move the dates to anywhere around May'07 - Aug'07 depending on their spillover estimates.

On a different note, this trackitt thread emphasizes on "quality" of one's credentials (publications, citations, etc) for EB1 approval:
http://www.trackitt.com/usa-discussi...page/last_page

Quote:

---

Originally Posted by veni001

neospeed,
My predictions never came true, but let me try!

EB2IC for AUG2011VB
Conservative:01JUN2007
Realistic:01AUG2007
Maximum:01JAN2008

---

Oh no....please move it till Feb 2008...;)

Friends, we made yet another small donation from our advertisement revenues. Thanks to you all .... whatever meagre revenues we have, we will continue to make donations to good causes. So feel free to make suggestions.

You can find the list here http://www.qesehmk.org/forums/showth...s&goto=newpost

IMO, Kazarian memo will only 'delay' the processing, but will NOT have a impact on EB2IC numbers in the long run.( span of > 2 years). Any date movements that we can attribute to this memo are temporary, will have an opposite effect subsequent FY.

Let's call the total number of people who are affected by Kazarian memo, who either because of denials or fear tend apply in EB2 as:'X'

Until last year this X used to be in EB1.
Starting this year this, this X moved to Eb2.

Starting this year, EB1 spill over(SO) increased by X
Starting next year EB2 FAD will be decreased by same X

If you average out 2 year numbers, this effect must be canceled out. If I make any sense, that is:)

Quote:

---

Originally Posted by Spectator

snathan,

Probably the best thing is to read post #16 in this thread http://www.qesehmk.org/forums/showthread.php?6-FAQs

If EB2-ROW had demand in excess of their allocation, they would be "qualified immigrants who may otherwise be issued such visas", since Countries within it would not yet have reached their individual 7% limits.

Only when demand from such cases had been satisfied can the provisions of INA 202 (a)(5) come into play which allows visas to be allocated to Countries who have reached their own 7% limit.

It is only then that the provisions of INA 203(e), which stipulates that visas are awarded "to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General" come into play for China and India.

Until that point, China and India are not eligible to receive spare visas, so it would be the earliest PDs in the pool of ROW applicants.

---

Leo - I agree broadly but a HUGE difference between EB1 and EB2 is labor, which is a big impediment for filings. Companies are often hesitant or reluctant to go through the laborious process. So I think not all EB1s will end up via EB2.

Quote:

---

Originally Posted by vishnu

Leo - I agree broadly but a HUGE difference between EB1 and EB2 is labor, which is a big impediment for filings. Companies are often hesitant or reluctant to go through the laborious process. So I think not all EB1s will end up via EB2.

---

Quote:

---

Originally Posted by leo07

IMO, Kazarian memo will only 'delay' the processing, but will NOT have a impact on EB2IC numbers in the long run.( span of > 2 years). Any date movements that we can attribute to this memo are temporary, will have an opposite effect subsequent FY.

Let's call the total number of people who are affected by Kazarian memo, who either because of denials or fear tend apply in EB2 as:'X'

Until last year this X used to be in EB1.
Starting this year this, this X moved to Eb2.

Starting this year, EB1 spill over(SO) increased by X
Starting next year EB2 FAD will be decreased by same X

If you average out 2 year numbers, this effect must be canceled out. If I make any sense, that is:)

---

leo07,
In addition, that "x" contain an average of 10k -12k EB1IC for which EB2 is retrogressed, even if you take EB1IC will be affected 50% only, then EB2I can bank on an additional 5k towards ( in-addition to regular 2.8k) backlog reduction.

Quote:

---

Originally Posted by veni001

leo07,
In addition, that "x" contain an average of 10k -12k EB1IC for which EB2 is retrogressed, even if you take EB1IC will be affected 50% only, then EB2I can bank on an additional 5k towards ( in-addition to regular 2.8k) backlog reduction.

---

I can see a mid point between Leo and Veni's viewpoints.

Much of the lower demand that DOS have seen this year for EB1 can be attributed to the longer processing times since Kazarian, which has led to fewer cases being adjudicated in FY2011.

Even if USCIS do not address the backlog that has built up, the pipeline has now been established and I can see EB1 approvals rising in future years to nearer 30k.

That would give a potential 10k FD to EB2.

If, using figures from the above posts, only 50% of former EB1 cases are now filed in EB2 in future years, then the effective FD would reduce to 5k.

If IC accounted for 25% of those extra EB2 cases, they would have later PDs, so that would add 1.25k extra numbers to be used for the oldest IC PD cases.

Overall, the effect would be around 6-7k FAD to EB2 retrogressed cases.

You can play around with the figures to give more optimistic or pessimistic scenarios, but I don't think we will see FAD from EB1 at anything like this year's level again.

In addition, the present USCIS approach post Kazarian is controversial and AILA have pointed out that it flies in the face of other court decisions. At some point, I suspect it will be the subject of further litigation.

I agree that presently, some types of institutions that previously applied under EB1B will be hesitant to use EB2, since they don't have the experience at present. I think that will be temporary, because to retain these people, they will have to do so in the future. In the main though, it is easier to prove EB1B in an academic research setting, so the reductions in EB1B applications may simply not materialize.

@leo / Q / Veni,

There is 1 segment of EB1 - A, artists, writers and a few others who would not be able to find direct employment with a US employer. These folks possibly cannot file in EB1-B and even EB2 so this segment will almost completely be eliminated by the Kazarian memo unless someone is really well acclaimed for example Sonu Nigam. I don't know how many cases these folks would be accounting for. Also denials are definitely on the rise but people would be hesitant to discuss or track them openly. There is no qualitative way to count or track the denials or those who cannot possibly apply in EB1-B or EB2. Many folks from India / China especially those with a Phd are applying for EB1-A simply because they are stuck in EB2 and getting the EB1 - I140 approved self filed can be more of a jackpot. EB1-A approvals are normally harder to come by when compared with EB1-B.

Quote:

---

Originally Posted by Spectator

snathan,

Probably the best thing is to read post #16 in this thread http://www.qesehmk.org/forums/showthread.php?6-FAQs

If EB2-ROW had demand in excess of their allocation, they would be "qualified immigrants who may otherwise be issued such visas", since Countries within it would not yet have reached their individual 7% limits.

Only when demand from such cases had been satisfied can the provisions of INA 202 (a)(5) come into play which allows visas to be allocated to Countries who have reached their own 7% limit.

It is only then that the provisions of INA 203(e), which stipulates that visas are awarded "to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General" come into play for China and India.

Until that point, China and India are not eligible to receive spare visas, so it would be the earliest PDs in the pool of ROW applicants.

---

Spec your explanation in the facts and data seems to be absolutely perfect to me. However for those who are not inclined to read the details the following simple one may suffice. If you like you can edit what I posted below and add it at the top of your post in facts and data.

Rule A - 7% Rule across EB, to classify as retrogressed it has to be EB + FB.
Rule B - Fall down.
EB2 - India gets spillover because EB2 ROW is current since Rule A is satisfied then Rule B can be applied. So the most important thing for Eb2 I/C is that EB2 ROW stays current.
EB3 ROW - Prior to AC 21 rule B was not being applied until rule A was being applied to all categories so EB3 ROW was getting the spillover. EB3 ROW is bleeding additional numbers because Mexico and Philippines are under utilizing EB1 and EB2 and they continue to use 6-7K visas per annum which are extracted from EB3 ROW.
EB3 - I / C Unfortunately because of process streamlining and clearing of labor and to a large extent I140 backlog there are huge reserves of EB3 ROW and EB2 I/C applications. Note that the spillover rule did not change anything for EB3-I whether it goes to EB2 I/C or EB3 ROW is more a choice of devil and deep sea.

Quote:

---

Originally Posted by TeddyKoochu

.................................................. .................................................. ......
.................................................. .................................................. .
EB3 ROW - .................................................. ............................. EB3 ROW is bleeding additional numbers because Mexico and Philippines are under utilizing EB1 and EB2 and they continue to use 6-7K visas per annum which are extracted from EB3 ROW.

---

Teddy,
When EB Mexico and Philippines hasn't reached their country limit, can they even be considered a retrogressed category in visa bulletin ( listing them under a separate column for EB3) ? Shouldn't they be listed as part of ROW ?

Also there could be many other ROW countries under utilizing EB1/EB2 visa numbers. The only difference being Mexico and Philippines has older PD.

Quote:

---

Originally Posted by gcq

Teddy,
When EB Mexico and Philippines hasn't reached their country limit, can they even be considered a retrogressed category in visa bulletin ( listing them under a separate column for EB3) ? Shouldn't they be listed as part of ROW ?

Also there could be many other ROW countries under utilizing EB1/EB2 visa numbers. The only difference being Mexico and Philippines has older PD.

---

The classification for retrogressed is based on EB + FB so Mexico and Philippines are classified as retrogressed. However the 7% rule is also within EB so it allows them to extract much higher numbers at the expense of EB3 ROW. Philippines has already caught up with ROW and Mexico is expected to be there soon. Even after catch up these countries will extract more because their demand under EB3 ROW is higher.

That's because they do fulfil their 7% quota when looked across EB+FB

Quote:

---

Originally Posted by gcq

Teddy,
When EB Mexico and Philippines hasn't reached their country limit, can they even be considered a retrogressed category in visa bulletin ( listing them under a separate column for EB3) ? Shouldn't they be listed as part of ROW ?

Also there could be many other ROW countries under utilizing EB1/EB2 visa numbers. The only difference being Mexico and Philippines has older PD.

---

thanks for your hard work and charity donations. you are doing the right thing.

Quote:

---

Originally Posted by qesehmk

Friends, we made yet another small donation from our advertisement revenues. Thanks to you all .... whatever meagre revenues we have, we will continue to make donations to good causes. So feel free to make suggestions.

You can find the list here http://www.qesehmk.org/forums/showth...s&goto=newpost

---

Quote:

---

Originally Posted by gcq

Teddy,
When EB Mexico and Philippines hasn't reached their country limit, can they even be considered a retrogressed category in visa bulletin ( listing them under a separate column for EB3) ? Shouldn't they be listed as part of ROW ?

Also there could be many other ROW countries under utilizing EB1/EB2 visa numbers. The only difference being Mexico and Philippines has older PD.

---

A country can still have a Cut Off Date earlier than ROW if they can still reach the 7% limit (even the larger overall one) with cases with a PD earlier than the ROW Cut Off Date.

As an example, in FY2010 Mexico, before becoming Unavailable in the May 2010 VB, had a Cut Off Date of 01JUL02.

At that time ROW had a Cut Off Date of 01FEB03 and finally reached 15DEC04 in September 2010.

Despite that, EB3-M received 7,740 EB3 visas and 11,385 visas overall in EB versus the overall 7% limit for EB of 10,546 in FY2010.

Had Mexico shared the ROW Cut Off Date, who knows how many visas would have been allocated!

I suspect that EB3-M had an awful lot of 245(i) cases that were appearing out of the woodwork.

This year, the Cut Off Date for EB3-M has advanced rapidly to 01JUL05 whilst ROW now stands at 08OCT05.

It seems likely that the EB3-M Cut Off Date will be the same as ROW towards the end of the year.

Once Mexico has caught up ROW, their ability to "steal" visas from ROW should be diminished, since they will compete with ROW (and Philippines) on the same PD basis.

There are other Countries who do not reach the overall 7% limit, but they are constrained from receiving more by the 28.6% overall limit for EB3. They do not have anywhere from which to "steal" additional visa numbers.

Mexico and Philippines do so by reducing the ROW allocation within EB3 - quite unfairly in my opinion.

Quote:

---

Originally Posted by qesehmk

That's because they do fulfil their 7% quota when looked across EB+FB

---

The only Country in ROW that uses the entire overall EB 7% (and a bit more) is South Korea because of the FB interpretation (11,889 in FY2010).

No other Country comes even remotely close. Even Philippines (6,786 in FY2010), who share the same Cut Off Date as ROW do not even approach the overall EB 7% limit .

The constraint becomes the overall number of visas available to EB3 as a whole.

Quote:

---

Originally Posted by qblogfan

thanks for your hard work and charity donations. you are doing the right thing.

---

Q, + 1 you are doing a great job by donating the proceeds to charity. The amount really does not matter it is the good intentions; I hope they bring good luck to all of us and especially to you in the next VB.

Spec, Could you please give your thoughts on this?

I am imagining that EB2-C will go current sometime in FY 2012 or FY 2013 given their meager demand. This will alter the dynamics even further for EB2. I don't know how so. Mostly likely even less fall across for EB2-I.

Quote:

---

Originally Posted by kd2008

Spec, Could you please give your thoughts on this?

I am imagining that EB2-C will go current sometime in FY 2012 or FY 2013 given their meager demand. This will alter the dynamics even further for EB2. I don't know how so. Mostly likely even less fall across for EB2-I.

---

kd,

I am not sure how EB2-C could become Current ahead of EB2-I.

Compared to India, they do have much lower demand, but it is still in excess of the 7% limit.

So, whilst the initial allocation is in place, the EB2-C Cut Off Date would progress at a faster rate than EB2-I.

However, they would still need Spillover to become Current. Since the Cut Off Dates for IC have to be the same during Spillover season, they would be constrained from moving any faster than EB2-I and could not become Current. As the disparity in the first part of the year increases, EB2-C will receive less and less of the Spillover, since China PDs will be much later than India PDs.

Unless EB2-C demand becomes less than the 7% limit, China and India have to become Current together.

Am I missing something?

Spec - you are right. The 7% is based on EB and FB categories, not purely based on EB demand.

@Veni, I see your point and agree, about I&C being the major consumers of EB1 and when they move to EB2, they stand farther in line to not impact the existing EB2 line. I did think that number would be insignificant initially, in the range of 2-2.5k max. I could very well be wrong. Thanks for your comments!

@Teddy & @Vishnu, My views over GC process and paths have changed many times over my journey and they are still evolving to say the least. So, in my view(current :)), if X number of people seek GC, irrespective of category/path/family/EB etc, then there WILL be X GC applications. The applications could end up in one lane or the other depending on their individual situations and whatever maximizes their chances. So, I still think that X remains constant. It can move to LHS or RHS of the equation depending on the prevailing Socio-economic & political factors.

@Spector,

Veni did bring out a good point, the more I think about it, the more I tend to agree, which I thought insignificant to begin with:) Do you have any numbers or hunch on EB1IC numbers that move into EB2?

Best!

Quote:

---

Originally Posted by TeddyKoochu

@leo / Q / Veni,

There is 1 segment of EB1 - A, artists, writers and a few others who would not be able to find direct employment with a US employer. These folks possibly cannot file in EB1-B and even EB2 so this segment will almost completely be eliminated by the Kazarian memo unless someone is really well acclaimed for example Sonu Nigam. I don't know how many cases these folks would be accounting for. Also denials are definitely on the rise but people would be hesitant to discuss or track them openly. There is no qualitative way to count or track the denials or those who cannot possibly apply in EB1-B or EB2. Many folks from India / China especially those with a Phd are applying for EB1-A simply because they are stuck in EB2 and getting the EB1 - I140 approved self filed can be more of a jackpot. EB1-A approvals are normally harder to come by when compared with EB1-B.

---

Quote:

---

Originally Posted by leo07

@Veni, I see your point and agree, about I&C being the major consumers of EB1 and when they move to EB2, they stand farther in line to not impact the existing EB2 line. I did think that number would be insignificant initially, in the range of 2-2.5k max. I could very well be wrong.

---

I & C only account for around 30% of EB1 approvals.

Whilst that is a lot for only two Countries, there are still 70% of approvals from other Countries. That limits the effect of later PDs for EB2-IC as 70% of the new EB2 cases will be Current (or at least ahead of EB2-IC for FD).

IMO EB3 Mexico stealing numbers from EB3 ROW is not only unfair, it is wrong as per INA.

If visa office is allocating additional number to EB3 Mexico because of its less consumption in EB1/EB2 mexico, these numbers has to come from EB1/EB2 mexico quota ( affecting EB2 IC spillover fest). This direct transfer is blocked by AC21 laws. Each subcategory has a limit in itself ( 7%). The only thing visa office can do is categorize EB3-Mexico as ROW. Everything else is illegal.