EB2-3 Predictions (Rather Calculations) - 2014

[qesehmk]

Spec - thanks and sorry to have you do this. I could've done it just as much easily.

I understand and agree. But dont you think that kind of proves my point that DOS pretty much sometimes works arbitrarily (from our stand point).

In this particular case the entire EB category used 5K more than really available and then majority was received by EB2I and some by EB3I.

On another note - I really don't think DoS particularly did any favor to Indian. At least not until they actually start doing spillovers on a quarterly basis.

I'll spell it out in more detail.

Fall Down was composed of :

EB1 - 6,263
EB4 - 4,805
EB5 - 2,687

Total Fall Down - 13,755

Fall Across in EB2 was

EB2-M - 1,455 Gave Fall Across
EB2-P - (1,267) Still stayed within overall 7% EB and FB limit
EB2-ROW - (3,852) Required more approvals than initial allocation (due to previous FY retrogression)

Total Fall Across - (3,664)

i.e. EB2-WW used 3,664 of the 13,755 Fall Down.

Net Spillover available - 10,091

Theoretical maximum SOFAD for EB2-I equals 10,091 spillover plus 3,172 initial allocation = 13,263 total approvals.

Actual EB2-I approvals were 17,193.

EB2-I received 3,930 more approvals than spillover alone justified. Part of that would have been due to the over use of the total EB allocation.

[Spectator]

Spec hope you don't mind me asking for an explanation in light of the info you are pointing to; what's different this year for China compared to 2013 when 4K were unused that VO was compelled to issue a statement on the topic this year but not last?

Q,

I don't know. I think only CO himself could answer your question. I can't.

Here's some ideas (but they are hardly more than a guess).

Maybe it is simply that he feels he has a sufficient idea of China FB use for the FY sufficiently early to make the decision to reallocate the numbers.

That might also point to him being satisfied that he has FB use under control and that they will use their allocation this year.

Clearly CO did not have control over FB usage over the last 2 years given their under use of their allocation. He didn't push the FB CODs forward as corrective action, so he must have thought use would be higher than it actually was. Under those circumstances he may not have had the confidence to make such a decision.

I think he needs a fairly high level of confidence to even consider reallocating FB numbers to the EB component for the 7% calculation. Personally, I would not do it if the margin was only counted in the hundreds. That's within the margin for Consular returns.

Maybe the decision is the mark of some successful lobbying by the Chinese community behind the scenes. They have been extremely unhappy and have made it known to CO through the channels they have available, judging by the Chinese forums. Perhaps he is throwing them a bone of a few hundred extra visas. They also feel they are being discriminated against, rightly or wrongly. It's a matter of perspective.

As I alluded to earlier, I don't fully understand the interplay of the different laws involved and which take precedence, The order of application would give different results.

A case such as South Korea is simple - they use well under the 7% combined limit. It's not even close - a matter of around 10k. There is no complication of actually reaching the 7% limit or of Fall Across and Fall Down to consider. The decision to let SK EB Categories use extra numbers from FB is a complete "no-brainer".

[Spectator]

Spec - thanks and sorry to have you do this. I could've done it just as much easily.

I understand and agree. But dont you think that kind of proves my point that DOS pretty much sometimes works arbitrarily (from our stand point).

In this particular case the entire EB category used 5K more than really available and then majority was received by EB2I and some by EB3I.

On another note - I really don't think DoS particularly did any favor to Indian. At least not until they actually start doing spillovers on a quarterly basis.

I think it points to a fairly poor job being carried out by DOS over the last two years. It is shocking that any FB visas should be wasted when all Categories are retrogressed.

I think you are being a little blinkered and forgetting the occasions and interpretations that have favored EB2-I. I think we have previously agreed to disagree about quarterly spillovers. Let's leave it at that.

[qesehmk]

I think it points to a fairly poor job being carried out by DOS over the last two years. It is shocking that any FB visas should be wasted when all Categories are retrogressed.

I think you are being a little blinkered and forgetting the occasions and interpretations that have favored EB2-I. I think we have previously agreed to disagree about quarterly spillovers. Let's leave it at that.

Spec - touche on blinkers!
But possibly if you waited 8 years because of the 7% rule and then perhaps you too would develop blinkers!

[Spectator]

From ILW.COM Blogs or the Musillo site.

It's a little different (and more pessimistic) than the Oh article. I'll continue to look for other attorneys views.


VISA PROJECTIONS FOR THE NEXT FEW MONTHS

06-24-2014

by Chris Musillo

MU Lawyers were at AILA’s annual convention in Boston last week. In discussing the Visa Bulletin with several attorneys, and piecing together some information from DOS officials, here are our unofficial projections for the remainder of Fiscal Year 2014, which ends September 30, 2014.

EB-1

• EB-1 is expected to stay current through the Fiscal Year.

EB-2

• China: Chinese EB-2 numbers could progress, although it does not appear that it will move too quickly.

• India: Indian EB-2 numbers jumped dramatically between May and June 2014, progressing nearly four years to September 2008. Our sense is that the Indian EB-2 number will continue to stay in 2008, and will continue to progress because the DOS does not want a single visa to go unused in this category. The number may temporarily become unavailable in September 2014, which is common.

• All Other: All other EB-2 should remain Current for the remainder of the Fiscal Year.

EB-3

• China: Chinese EB-3 numbers have been on a wild ride this year. They were into 2012 for much of the year before a massive retrogression in June. There is a sense that the DOS is unsure just how many numbers are needed. MU Law’s read is that the number will progress this summer, perhaps several years. Again, the DOS is trying to insure that all numbers in this category are used.

• India: The DOS has this category accurately projected. As a result India EB-3 will continue its very slow progression.

• Philippines: It seems unlikely that this number will get into 2010. That having been said, the number should progress steadily in FY 2015.

• All Other: The DOS tapped the breaks on this number in June, stalling it at April 2011. MU Law’s sense is that the number will progress before becoming temporarily unavailable later in the Summer.

[Spectator]

But OH reported after the same AILA conference that the numbers will jump into 2009! Corroborated by Fragoman and all these RFEs too point to such a movement.

Many a times, lawyers are not very good at predictions. Look no further than Ron Gotcher who has no idea of how to predict - either that, or he willingly blatantly misinforms.

Don't shoot the messenger!

I think it says that there was no session where a DOS official stood up and said "these are the projections". In the comments, a question was asked and answered today.

Pisu - 06-25-2014 11:13 AM

For EB-2 India, what is the prediction? Will the current dates move up to Aug'2009?

CMusillo - 06-25-2014 12:53 PM

Our sense is that the Indian EB-2 number will continue to stay in 2008. It would not be a total surprise if it moved into 2009, although I don't think it will get as far as August 09.

They stick to 2008, with a concession that it could move into 2009.

Funny how different people interpret the same information.


Personally, I would be more than very surprised if the Cut Off Dates do not move into 2009.

[vizcard]

They stick to 2008, with a concession that it could move into 2009.

Typical lawyer speak Glad they are not doctors. You don't have cancer.. but I won't be surprised if you did.

PS: I'm being dramatic. This is not meant to be a lawyer bashing post.

[qesehmk]

Nobody has a crystal ball. Neither I do.

But for what it's worth let me share my "opinion". I think I feel very confident that the dates will "temporarily" move beyond March 2009.

[ksur23]

I hope this firm is grossly wrong. Fragomen is a reputable firm and they called right last year and hopefully their call this year (early summer 09) proves to be prescient again.

With such high interest in EB2I I wonder if law firms realize their words are very closely scrutinized.

Spec, this is an exact quote from Oh's website:

"Reportedly, at the AILA National Conference, DOS sources disclosed the following rough predictions:

EB-2 India:
August: Move upto "early" 2009 (No wonder why EB-2 Indians have been receiving Medical RFEs for those with priority date of middle of 2009)
September: Move upto "spring 2009 (No wonder why EB-2 Indians have been receiving Medical RFEs for those with priority date of middle of 2009)
"

Fragoman has a very similar update with almost the same exact wording. Notice very specifically that Oh gives an exact progression of movement and Fragoman mentions "early spring".

I don't understand how this lawyer is "sensing" something so pessimistic from the exact same conference. If each one is giving his/her own interpretation, then they are very wildly differing to say the least.

Like Kanmani, this is now starting to play with my head (although my PD is still in 2008).

[MATT2012]

With a 2008 PD, one should not be worried, may be the first quarter of 2009 should not be worried. That is my opinion.

But why those RFEs until October 2009 ? I still don't have an answer?? Are they planning to carry forward many cases..

Getting back to the Attorney leads on PD movement, every lead is a lead, be it good or bad. But I do think that the latest one is very conservative.

[Spectator]

With a 2008 PD, one should not be worried, may be the first quarter of 2009 should not be worried. That is my opinion.

But why those RFEs until October 2009 ? I still don't have an answer?? Are they planning to carry forward many cases..

Getting back to the Attorney leads on PD movement, every lead is a lead, be it good or bad. But I do think that the latest one is very conservative.

Matt,

Nice to see a post from you.

I agree with you about the RFEs issued to late October 2009.

I can't see the Cut Off Dates moving that far this FY, so they won't be approved from the FY2014 allocation.

I can't see the Cut Off Dates moving that far in early FY2015 either. If they did, too many cases would be eligible to be approved for the number of visas CO would have available at that time.

I can't see the dates in October 2014 moving past the date set for the September 2014 VB. IMO, the approvals in early FY2015 will just be mopping up cases that could not be approved within the FY2014 limits.

[vedu]

I think what he means by this is the EB2 India dates will continue to stay in 2008 in the next year. There will not be any severe retrogression once this year ends like in the previous years. That's just my take!

From ILW.COM Blogs or the Musillo site.

VISA PROJECTIONS FOR THE NEXT FEW MONTHS

06-24-2014

by Chris Musillo

MU Lawyers were at AILA’s annual convention in Boston last week. In discussing the Visa Bulletin with several attorneys, and piecing together some information from DOS officials, here are our unofficial projections for the remainder of Fiscal Year 2014, which ends September 30, 2014.

[*]India: Indian EB-2 numbers jumped dramatically between May and June 2014, progressing nearly four years to September 2008. Our sense is that the Indian EB-2 number will continue to stay in 2008, and will continue to progress because the DOS does not want a single visa to go unused in this category. The number may temporarily become unavailable in September 2014, which is common.[/LIST]

[qesehmk]

vedu

I differ because as long as EB3I dates are behind EB2I there will be EB3I portings happening. And we have seen that the level is generally 3-5K per year which is more than sufficient to retrogress the dates.

So the new EB2I dates after Oct 2014 may not be in 2004 ... they could move into 2005. But unfortunately I have a strong suspicion that Nov 2014-Jun 2015 EB2I dates will be retrogressed again and the retrogression could very well be similar to 2014.

[vedu]

Q,

I understand your point. But who knows...the future portings may be manageable with the yearly quota and they may be able to keep the dates, say in January 2008. We will see!!

The statement from Musillo does not make sense otherwise. When we all know for a FACT that the dates are going to move to 2009, he mentions that the dates will continue to stay in 2008.

vedu

I differ because as long as EB3I dates are behind EB2I there will be EB3I portings happening. And we have seen that the level is generally 3-5K per year which is more than sufficient to retrogress the dates.

So the new EB2I dates after Oct 2014 may not be in 2004 ... they could move into 2005. But unfortunately I have a strong suspicion that Nov 2014-Jun 2015 EB2I dates will be retrogressed again and the retrogression could very well be similar to 2014.

[Spectator]

vedu

I differ because as long as EB3I dates are behind EB2I there will be EB3I portings happening. And we have seen that the level is generally 3-5K per year which is more than sufficient to retrogress the dates.

So the new EB2I dates after Oct 2014 may not be in 2004 ... they could move into 2005. But unfortunately I have a strong suspicion that Nov 2014-Jun 2015 EB2I dates will be retrogressed again and the retrogression could very well be similar to 2014.

Q,

I agree.

The author clarified that the 2008 comment related to FY2014. The temporarily unavailable comment just seems to refer to the fact that visa numbers generally run out before September 30 every year.

I agree with your porting comment. The April Inventory showed 27.4k EB3-I AOS cases alone with a PD between 2004 and July 2007. Including CP, that is nearer 30.4k potential cases still eligible to port and does not include any cases with a PD of August 2007 onwards who would have to file an I-485 for the first time.

[vedu]

Spec,

There may be double counting going on between EB2I and EB3I. Next inventory will give us a clear picture. Also, if there are too many EB2 ROW cases waiting to be processed and if USCIS processes cases as per RD, then it will take several months for porters to make any significant impact.

Q,

I agree.

The author clarified that the 2008 comment related to FY2014. The temporarily unavailable comment just seems to refer to the fact that visa numbers generally run out before September 30 every year.

I agree with your porting comment. The April Inventory showed 27.4k EB3-I AOS cases alone with a PD between 2004 and July 2007. Including CP, that is nearer 30.4k potential cases still eligible to port and does not include any cases with a PD of August 2007 onwards who would have to file an I-485 for the first time.

[qesehmk]

Q,

I understand your point. But who knows...the future portings may be manageable with the yearly quota and they may be able to keep the dates, say in January 2008. We will see!!

Yes if CO wants it that way then probably that's how he will do it. If he chooses to do that then IMHO the dates could very well be early 2009 instead of 2008.

Just that in last few years CO has chosen to do severe retrogression and then move dates only when there is SOFAD available.

[Spectator]

Spec,

There may be double counting going on between EB2I and EB3I. Next inventory will give us a clear picture. Also, if there are too many EB2 ROW cases waiting to be processed and if USCIS processes cases as per RD, then it will take several months for porters to make any significant impact.

I agree, but you can remove as many as you want for those reasons and still be left with a huge number of potential porters in the future.

A delay in processing the porters might help FY2014, but it only pushes their numbers into FY2015, which increases the likelihood of retrogression being necessary and how severe it needs to be. Porters who already have an I-485 filed, need only convert the case to an EB2 basis to be approved. The headwind to that at the moment is the lack of evidence that these cases are receiving an RFE for a new Medical. Until they receive and respond to that, their cases cannot be approved.

The more likely scenario IMO is that the Cut Off Date in September will be set well beyond the the number of visas left for FY2014, leaving many cases that are current to be pushed into FY2015.

The Cut Off date will probably be maintained for October 2014 and sufficient EB2-I approvals will be made in October 2014 from non-porting cases who missed out in FY2014 to force retrogression in November 2014 (December 2014 at latest). At that point, the Cut Off Date for EB2-I will retrogress steeply, because CO will not have any more "guaranteed" numbers for EB2-I until later in the FY.

[eb2visa]

It may be possible as some predicting, the date might move to 10/2009. fingers crossed.

Gurus any idea?

TSC - PD 09/2009. That is why i was saying, i don't expect to be current based on the projections from many people.
I can't find much information online on 485 cases with this kind of status update. Most of the cases with this kind of updates i find online are 130. My wife (dependent only) received EVL RFE during last year mass RFEs (which was strange too). And my lawyer had responded that EVL for a dependent is not possible.
BTW, thanks for your reply.

[Spectator]

I have updated the PERM section of FACTS & DATA with the provisional figures for Q3 FY2014.

I will update them when DOL release the official FY2014 Q3 Disclosure Data, although that will not be for some time.

Despite an extremely slow last 2 days, Q3 FY2014 had 21.1k certifications, compared to 17.1k in Q2 and 9.1k in Q1. India accounted for about 56% of certifications (unchanged).

Certifications for FY2014 to date are 47.3k, compared to 35.2k for all of FY2013. In FY2013, at the end of Q3, certifications were 27.9k, so certifications are 70% higher than the corresponding time last FY.

Comparing just Q2 & Q3 certifications, FY2014 is 140% higher than FY2013 (38.2k vs 15.7k). ROW/M/P are c. 165% higher, India is c. 120% higher, with China c. 215% higher.

[eb2visa]

Q, Spec, Viz, other Gurus can you shed some light on this. Is the date going to move to 10/2009? Why the status changes and approve message?

It may be possible as some predicting, the date might move to 10/2009. fingers crossed.

Gurus any idea?

[Spectator]

Q, Spec, Viz, other Gurus can you shed some light on this. Is the date going to move to 10/2009? Why the status changes and approve message?

eb2visa,

I do not believe the Cut Off Dates will move to cover October 2009 cases in FY2014 or the beginning of FY2015.

[eb2visa]

Any idea what this status change could be? is it could be an RFE?

Even if it is a RFE, it is still interesting as they are issuing RFEs for 2009 guys. Did any one heard people after Oct 2009 getting RFEs?

eb2visa,

I do not believe the Cut Off Dates will move to cover October 2009 cases in FY2014 or the beginning of FY2015.

[suninphx]

eb2visa,

I do not believe the Cut Off Dates will move to cover October 2009 cases in FY2014 or the beginning of FY2015.

Approvals also seem to be extremely slow. Personally I was expecting much more approvals today. Of course, it's very early and I hope approvals pick up soon. Currently, cases filed in FY2013 seem to be getting approved. (based on trackitt).

Spec- how many approvals do we expect on a day (on trackitt) to indicate robust trend?

[Spectator]

Approvals also seem to be extremely slow. Personally I was expecting much more approvals today. Of course, it's very early and I hope approvals pick up soon. Currently, cases filed in FY2013 seem to be getting approved. (based on trackitt).

Spec- how many approvals do we expect on a day (on trackitt) to indicate robust trend?

Of the 5 I know about (4 updated in Trackitt), 4 are NSC and 1 is CSC.

I think TSC generally release their approvals later, so it may be deceptive.

I fully expect to see 20-60 Trackitt approvals per day as last year after a few days.