EB2-3 Predictions (Rather Calculations) - 2014

[Kanmani]

This is true. What is vague (and may be Kanmani can see through the legal jargon) is the interpretation of 7% country limit. Once a quarter is history - is 7% interpreted over the remaining visas or the full year limit? My hunch is it is the latter.

Q, I'll try to explain this as much I can in simple words .

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

This total includes FB + EB , for a non-retrogressed country this annual limit is never reached . DoS has no botheration over monitoring the visa numbers released for the "C" countries.(those countries whose dates are always current in the Visa bulletin)

In the case of both India/China, they have backlog in each and every sub-division of FB and EB. DoS has no option other than fixing 7% upper limit within the subdivision of FB and EB. This way they can monitor that 7% of F1 + 7% of F2..........+7% of EB5 will not exceed the 25,620 .

For India, 7% of Eb2 limitation is 2800 ( in a typical 140K year).

Out of 10,800 released per quarter to all EB2 countries, only 27% of 2800=756 is allotted to India per quarter. This 756 is subjected to annual limitation.

If all 10,800 are not seem to be utilized, CO by law has every right to distribute to backlogged countries. These extra visas are not counted against that 2800 total.

Again, India is eligible for 756 in the second quarter.

[Pedro Gonzales]

As mentioned in my previous post. The approvals will start slowing down once we reach closer to 200 approvals in trackitt.

As of today 162 approvals in trackitt for Oct 2013. This would translate to ~2500 real world approvals. CO will use up the annual limit ~2900 and then stop giving approvals. HOwever, if he decides to use quarterly spillover then the approvals will keep continuing. I do not believe quarterly spillovers will be applied. I firmly believe, CO will use up the annual limit of ~2900 visas and then stop giving approvals. I am getting a feeling EB2I will internally retrogress after this week and will be made U (unavailable) soon. If that happens then CO will be following a good strategy to not allow any more porting as no one can file I-485 if the date is made unavailable.

Jagan, a few observations to point out why you are wrong:
a) CO does not give or stop giving approvals. The USCIS does that. CO and the DoS can only publish the VB which determines who is eligible for approval.
b) The USCIS has never previously internally retrogressed based on annual limits for a particular country. I don't believe that they have the mechanisms in place to do so (although that wouldn't be difficult to install), and I can't find any legal justification for it. They have only internally retrogressed in the past when annual availability for a complete category was used up.
c) If there is demand from EB2I this month or next, the USCIS has to keep giving out visas. Only CO can make it U in the next VB, but that wont' kick in until December. So, if the USCIS keeps giving visas beyond the 3000 to EB2I, there is defacto quarterly spill over.

[imdeng]

Very interesting indeed. The fact that EB3ROW PD is also progressing despite the 3 year jump and EB3I PD is steady after a big jump probably indicates that a good part of the EB3 demand has been lost - either due to porting or through demand destruction.

An EB3ROW PD in 2010s means that EB2ROW should see less porting demand coming in - that will help EB2IC through better horizontal spillover numbers. Its an encouraging sign.

PS> Hi everybody. I have been lurking occasionally but have not posted much. Glad to see the forum as healthy as always.

One interesting observation EB3I demand reduced by 15,175 in the last one year (Nov 2012 to Nov 2013)

[Pedro Gonzales]

Q, I'll try to explain this as much I can in simple words .

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

This total includes FB + EB , for a non-retrogressed country this annual limit is never reached . DoS has no botheration over monitoring the visa numbers released for the "C" countries.(those countries whose dates are always current in the Visa bulletin)

In the case of both India/China, they have backlog in each and every sub-division of FB and EB. DoS has no option other than fixing 7% upper limit within the subdivision of FB and EB. This way they can monitor that 7% of F1 + 7% of F2..........+7% of EB5 will not exceed the 25,620 .

For India, 7% of Eb2 limitation is 2800 ( in a typical 140K year).

Out of 10,800 released per quarter to all EB2 countries, only 27% of 2800=756 is allotted to India per quarter. This 756 is subjected to annual limitation.

If all 10,800 are not seem to be utilized, CO by law has every right to distribute to backlogged countries. These extra visas are not counted against that 2800 total.

Again, India is eligible for 756 in the second quarter.

Kanmani, I agree with everything else, but the 27% limitation, by my read only applies to the enire category (EB1, EB2 etc), not to individual countries within that category. If EB2 ROW doesn't use its share of the 10,800 this Quarter (which it appears that it won't) India is permitted to use the remaining amount, but that does not increase its annual limitations. I.e, if due to QSP India uses up its annual limitation in Q1, it can be made unavailable in Q2, and doesn't have a right to an additional 756 per quarter if EB2 ROW demand materializes.

Having said that, the 10,800 is only an upper limit and there is no requirement that it be fully used in each of Q1 through Q3. In the past, COs position would have be to set the VB so that EB2I only use 1/12th of its 2,800 visas each month (including potential porting) and wait until Q4 to allot the annual spillover to EB2I so that he doesn't fall afoul of the country limits in Q4 if new EB2ROW demand materializes. This year, either he is confident that EB2I demand pre-June 15 2008 is lower than EB2I annual limitations (so no quarterly spillover is being used), or he is confident that EB2ROW demand won't materialize by the end of the year (so quarterly spillover is being used).

[gcq]

Law clearly states that per country rule isn't applicable in the quarter where there isn't enough demand for ROW. So if in later quarters demand is high enough, per-country rule will be applicable for that quarter.

I would repeat the same question you asked earlier.
Any supporting documents/law in support of this ?

[PD2008AUG25]

I would repeat the same question you asked earlier.
Any supporting documents/law in support of this ?

http://www.uscis.gov/ilink/docView/S...-0-0-1016.html


(A) EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE- If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 203(b) for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.

[Kanmani]

Kanmani, I agree with everything else, but the 27% limitation, by my read only applies to the enire category (EB1, EB2 etc), not to individual countries within that category. If EB2 ROW doesn't use its share of the 10,800 this Quarter (which it appears that it won't) India is permitted to use the remaining amount, but that does not increase its annual limitations. I.e, if due to QSP India uses up its annual limitation in Q1, it can be made unavailable in Q2, and doesn't have a right to an additional 756 per quarter if EB2 ROW demand materializes.

Having said that, the 10,800 is only an upper limit and there is no requirement that it be fully used in each of Q1 through Q3. In the past, COs position would have be to set the VB so that EB2I only use 1/12th of its 2,800 visas each month (including potential porting) and wait until Q4 to allot the annual spillover to EB2I so that he doesn't fall afoul of the country limits in Q4 if new EB2ROW demand materializes. This year, either he is confident that EB2I demand pre-June 15 2008 is lower than EB2I annual limitations (so no quarterly spillover is being used), or he is confident that EB2ROW demand won't materialize by the end of the year (so quarterly spillover is being used).

Yes Pedro, you are correct. 27% applies to the entire category.

Regarding the QSP discussions, my interpretation from the Nov 2013 visa bulletin (Quoted above in my earlier post today)is that CO had a clear sketch in moving the dates to june 2008. He made a reservation for the (then) future demand that could be accumulated between August 10th to September 31st i.e., demand after the release of Sept Demand data (Newly filed/interfilers-porters).

[gcq]

http://www.uscis.gov/ilink/docView/S...-0-0-1016.html


(A) EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE- If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 203(b) for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.

This situation rarely becomes a reality. This statement is not specific to a retrogresses category ( EB2-I for example), this can happen only when total EB demand is less that total EB visas available for that quarter. With such a high demand from retrogressed countries, this will never happen most of the time including now.

if (demand (EB ROW + EB INDIA + EB CHINA) < Total Visas available )
{
do QSP
}

[PD2008AUG25]

This situation rarely becomes a reality. This statement is not specific to a retrogresses category ( EB2-I for example), this can happen only when total EB demand is less that total EB visas available for that quarter. With such a high demand from retrogressed countries, this will never happen most of the time including now.

if (demand (EB ROW + EB INDIA + EB CHINA) < Total Visas available )
{
do QSP
}

Nope.

If demand (Eb2I + Eb2C + EB2ROW) < supply (EB2)
do QSP to EB2

Note that total visas refer to individual 5 categories. look at the "or (5)" in that sentence.

How else can you explain EB1 India being current? There is always continuous QSP going on in EB1I.

[Kanmani]

This situation rarely becomes a reality. This statement is not specific to a retrogresses category ( EB2-I for example), this can happen only when total EB demand is less that total EB visas available for that quarter. With such a high demand from retrogressed countries, this will never happen most of the time including now.

if (demand (EB ROW + EB INDIA + EB CHINA) < Total Visas available )
{
do QSP
}

gcq,

Paragraph 1 of Section 203(b) is EB1, Paragraph 2 is EB2 .....etc
Under that paragraph refers to within the category EB1, EB2 etc....

PD2008AUG25is correct .

[qesehmk]

Out of 10,800 released per quarter to all EB2 countries, only 27% of 2800=756 is allotted to India per quarter. This 756 is subjected to annual limitation.

If all 10,800 are not seem to be utilized, CO by law has every right to distribute to backlogged countries. These extra visas are not counted against that 2800 total.

Again, India is eligible for 756 in the second quarter.

Kanmani thanks.

I take my words back here. I think that all numbers allocated to retrogressed countries count towards country limit regardless of what kind of numbers they are.

[gcq]

Nope.

If demand (Eb2I + Eb2C + EB2ROW) < supply (EB2)
do QSP to EB2

Note that total visas refer to individual 5 categories. look at the "or (5)" in that sentence.

How else can you explain EB1 India being current? There is always continuous QSP going on in EB1I.

Even if you consider that comparison to be within a category ( say EB2), the condition still does not apply as we know there is lot of demand within EB2-I category itself. Again, the key is "sum of EB2 ROW + EB2-I + EB2C + EB2*".
For EB1, country quota doesn't apply by the same rule or that fact that India doesn't have enough demand in EB1 category to become a retrogressed category.

[qesehmk]

We may be going in circles. So for clarity here is some explanation of visa allocation and limits.

1. Overall limit is 140K for all EB. That itself is a lower limit. Not an upper one. Any discussion on this topic alone could be a separate thread. However lets move to point 2.
2. Then there are category limits which are all hard % limits i.e. no room for interpretation. 28.6 for EB1/2/3 and 7.1 for 4/5.
3. Then there is something called as country limit which is 7% but is measured across EB and FB. It it important to note that this is limit - not quota but because most of the backlogged countries have cases that are ripe to be allocated visas - this limit practically turns into a quota. But otherwise no other country really has any quota whatsoever.
4. Then there is a provision that says every quarter USCIS should allocate not more than 27% of annual EB numbers. Again - this is upper limit but DOS tries to reach that limit so as not to waste visas in later parts of the year.

Now having said this - how does this play out in a year? Lets say there is 100K visas available for year.

So DOS starts with 27000 in Q1. And divides among all categories in their % quotas (28.6 and 7.1 for EB1/2/3 and 4/5 respectively).

It is not clear at a month level what Does DOS do. However within a quarter DOS does try to allocate 7722 from above example for EB2. There is no quota for any country at this point. So it will simply allocate to the oldest demand first. Clearly EB2I will reach its 7% very quickly. So then EB2I then stops and DOS continues with other countries that are current. If near the end of the quarter, DOS sees that there isn't enough demand within other countries it will give remaining visas to EB2I regardless of EB2I's country limit.

The question is what happens in Q2 now that EB2I may have already reached its Q2 or even the full year limit?

So first DOS will calculate Q2 EB2 numbers (7722 from above example). And again start allocating oldest first. If EB2I has already reached its limit then it will have to wait until the end of Quarter when DOS will make a determination if there are extra visas available within EB2. If indeed so, then EB2I will receive those visas regardless of the country limit.

Another question is when is 7% limit calculated within EB vs EB+FB vs within a quarter etc. My best understanding is that it is not clear. It is left to DOS discretion. I think DOS certainly uses better common sense in calculating 7% only for EB and that too at quarter or even month level in early quarters. As quarters progress perhaps in 3 or 4th quarter DOS will look across EB and FB to determine if 7% is already reached for a particular country.

I hope this helps. As I said - there are somethings we know for sure. And then there are others where we can debate endlessly because none of us really know those things. But I have tried my best to illustrate the process.

[Jagan01]

Pedro,
I will point out why I disagree with you.

Jagan, a few observations to point out why you are wrong:
a) CO does not give or stop giving approvals. The USCIS does that. CO and the DoS can only publish the VB which determines who is eligible for approval.
b) The USCIS has never previously internally retrogressed based on annual limits for a particular country. I don't believe that they have the mechanisms in place to do so (although that wouldn't be difficult to install), and I can't find any legal justification for it. They have only internally retrogressed in the past when annual availability for a complete category was used up.
c) If there is demand from EB2I this month or next, the USCIS has to keep giving out visas. Only CO can make it U in the next VB, but that wont' kick in until December. So, if the USCIS keeps giving visas beyond the 3000 to EB2I, there is defacto quarterly spill over.

In response to your point (b):
If what you are saying is true then all countires within one category should become unavailable together. If the EB2 limit is exausted then why only make EB2I unavailable. Why not EB2WW?

In response to you point (c):
I mentioned the same thing that first 3000 will be the annual quota used and post that it will be the Quarterly Spillover. The point where we differ is that you think he will continue past 3000 and I think that he will stop at 3000. As I mentioned in response to your point (b), I think EB2I can be made unavailable after it uses its quota and then again made available at end of the year to use the spillover.

[PD2008AUG25]

Even if you consider that comparison to be within a category ( say EB2), the condition still does not apply as we know there is lot of demand within EB2-I category itself. Again, the key is "sum of EB2 ROW + EB2-I + EB2C + EB2*".
For EB1, country quota doesn't apply by the same rule or that fact that India doesn't have enough demand in EB1 category to become a retrogressed category.

That equation is slightly misleading. Considering that 7% is max limit for a country and we know that only India and China uses their full allocation, resulting equation is:

EB2I (max allocation/qtr) + EB2C (max allocation/qtr) + EB2 Row usage per qtr < supply for EB2 (qtr)
do QSP.

This quarter it means that if EB2ROW < 9100, QSP is technically possible.


EB1 India demand is far in excess of 7% per-country rule. Only reason EB1 India is not retrogressed because EB1 ROW uses much less numbers and total EB1 usage is still around or below 40k. Regardless, Rule that governs EB1, also governs EB2.

[GhostWriter]

Jagan, PD2008AUG25, gcq - You might find the discussion at this link useful. Spec and Pedro did a great job at explaining various aspects of the spillover allocation.

[gcq]

We may be going in circles. So for clarity here is some explanation of visa allocation and limits.


Another question is when is 7% limit calculated within EB vs EB+FB vs within a quarter etc. My best understanding is that it is not clear. It is left to DOS discretion. I think DOS certainly uses better common sense in calculating 7% only for EB and that too at quarter or even month level in early quarters. As quarters progress perhaps in 3 or 4th quarter DOS will look across EB and FB to determine if 7% is already reached for a particular country.

On EB vs EB+FB, DOS uses EB+FB to determine the quota for the year. ( Not sure of Quarter. I assume DOS will have to divide the annual quota to calculate the quarterly limit). We have a proof that DOS uses this calculation from one of the 2009 visa bulletins where DOS allocated more than the 7% of the quota to EB3 S.Korea and they were not listed as retrogressed country as their total ( EB + FB ) usage was below 7%.

[qesehmk]

Yes certainly they do it. But the question is how does this then further gets calculated within a quarter or a month. That's what I was referring to in my post above that at a month or quarter level during first few quarters or months - most likely EB+FB is not considered because that time everything is wide open. As usage takes place it is easier to calculate and see who is approaching the overall limit.

On EB vs EB+FB, DOS uses EB+FB to determine the quota for the year. ( Not sure of Quarter. I assume DOS will have to divide the annual quota to calculate the quarterly limit). We have a proof that DOS uses this calculation from one of the 2009 visa bulletins where DOS allocated more than the 7% of the quota to EB3 S.Korea and they were not listed as retrogressed country as their total ( EB + FB ) usage was below 7%.

[Pedro Gonzales]

Pedro,
I will point out why I disagree with you.



In response to your point (b):
If what you are saying is true then all countires within one category should become unavailable together. If the EB2 limit is exausted then why only make EB2I unavailable. Why not EB2WW?

In response to you point (c):
I mentioned the same thing that first 3000 will be the annual quota used and post that it will be the Quarterly Spillover. The point where we differ is that you think he will continue past 3000 and I think that he will stop at 3000. As I mentioned in response to your point (b), I think EB2I can be made unavailable after it uses its quota and then again made available at end of the year to use the spillover.

You are right, the internal retrogression in May 2012 was instituted even before the entire EB2 2012 allocation was used up. I remembered it wrongly. Based on that history, what you stated could well happen. If it does, it'll certainly be a new strategy employed and one I like. Give EB2 its 3K at the beginning of the year and only give the spillover at the end of the year.

[Jagan01]

We may be going in circles. So for clarity here is some explanation of visa allocation and limits.

1. Overall limit is 140K for all EB. That itself is a lower limit. Not an upper one. Any discussion on this topic alone could be a separate thread. However lets move to point 2.
2. Then there are category limits which are all hard % limits i.e. no room for interpretation. 28.6 for EB1/2/3 and 7.1 for 4/5.
3. Then there is something called as country limit which is 7% but is measured across EB and FB. It it important to note that this is limit - not quota but because most of the backlogged countries have cases that are ripe to be allocated visas - this limit practically turns into a quota. But otherwise no other country really has any quota whatsoever.
4. Then there is a provision that says every quarter USCIS should allocate not more than 27% of annual EB numbers. Again - this is upper limit but DOS tries to reach that limit so as not to waste visas in later parts of the year.

Now having said this - how does this play out in a year? Lets say there is 100K visas available for year.

So DOS starts with 27000 in Q1. And divides among all categories in their % quotas (28.6 and 7.1 for EB1/2/3 and 4/5 respectively).

It is not clear at a month level what Does DOS do. However within a quarter DOS does try to allocate 7722 from above example for EB2. There is no quota for any country at this point. So it will simply allocate to the oldest demand first. Clearly EB2I will reach its 7% very quickly. So then EB2I then stops and DOS continues with other countries that are current. If near the end of the quarter, DOS sees that there isn't enough demand within other countries it will give remaining visas to EB2I regardless of EB2I's country limit.

The question is what happens in Q2 now that EB2I may have already reached its Q2 or even the full year limit?

So first DOS will calculate Q2 EB2 numbers (7722 from above example). And again start allocating oldest first. If EB2I has already reached its limit then it will have to wait until the end of Quarter when DOS will make a determination if there are extra visas available within EB2. If indeed so, then EB2I will receive those visas regardless of the country limit.

Another question is when is 7% limit calculated within EB vs EB+FB vs within a quarter etc. My best understanding is that it is not clear. It is left to DOS discretion. I think DOS certainly uses better common sense in calculating 7% only for EB and that too at quarter or even month level in early quarters. As quarters progress perhaps in 3 or 4th quarter DOS will look across EB and FB to determine if 7% is already reached for a particular country.

I hope this helps. As I said - there are somethings we know for sure. And then there are others where we can debate endlessly because none of us really know those things. But I have tried my best to illustrate the process.

Q,

Thanks for the detailed explanation. Whatever you mentioned makes perfect sense.

[Jagan01]

Please delete this if you seem its not relevant.

I do not know if we have focused enough on the verbose in the demand data "All eligible cases were then allocated Employment-based numbers on October 1, 2013, under the FY 2014 annual limits."

If spillover was being used then the verbose should have said "unused numbers". "FY 2014 annual limits" says its all.

Trackitt update:
Total approvals in Oct 2013 = 176 (~2640)
Total new filers approvals in Oct 2013 = 40 (~600)

Annual limit of approx 3000 will hit by the end of the week and I think the approvals will freeze.

As per my interpretation of what Q said in his post, the quarterly spillover will only be applied in end of first quarter (December). The number 7722 as explained by Q changes to 10228 for this year. Here is the math:
Total annual supply (148k) * per quarter max (.27) * per category max (.286) = 11428
11428 - EB2WW demand (200) - EB2C (1000) = 10228.

This makes things interesting as all four options become open in Dec:

If CO think quarterly spillover can be applied:
1. Forward movement : If CO thinks spillover supply can allow to drain the demand until June 2008 (including the new I-485 demand). May or may not happen.
2. Dates remain June 2008: If CO thinks quarterly spillover can be applied. Approx 10228 - 3000 = 7228 new visas. He would have a decent idea about porting demand and know whether total demand before June 2008 is more than 7228 or not. If it is then dates stay at June 2008.

If CO opts not to apply quarterly spillover:
3. Dates are pushed back considerably (Sep 04): Technically to a point where CO does not have to issue any visas. If he is not going for quarterly spillover then this may happen as he would have used up the annual 3000 and left for the year.
4. Dates made U: If he is not considering quarterly spillover then there wont be visas left as annual allocation of 3000 is used up in Oct itself. It would make perfect sense to make it U so that no more porting happens.

[Jagan01]

You are right, the internal retrogression in May 2012 was instituted even before the entire EB2 2012 allocation was used up. I remembered it wrongly. Based on that history, what you stated could well happen. If it does, it'll certainly be a new strategy employed and one I like. Give EB2 its 3K at the beginning of the year and only give the spillover at the end of the year.

Hey Pedro,

I seriously hope of getting at least EAD this year
I feel I stand a better chance with no Quarterly spillover. Lets see. I will certainly like this new strategy

[gcq]

Monthly EB demand-data is stored and updated here...

Veni,

I think the demand data posted for Nov 2013 is not correct. For instance EB3-I demand for 2004 is shown as 2900. However it is the demand from year 2003 ( Prior to Jan 2004) as per this link http://www.travel.state.gov/pdf/Empl...utOffDates.pdf

[Jagan01]

Veni,

I think the demand data posted for Nov 2013 is not correct. For instance EB3-I demand for 2004 is shown as 2900. However it is the demand from year 2003 ( Prior to Jan 2004) as per this link http://www.travel.state.gov/pdf/Empl...utOffDates.pdf

Veni,

By any chance do you know any thread where we would have the data from 2009? More precisely looking for Demand Data from Oct 2009 - Mar 2010.

I think FY2014 will be pretty similar to FY2010. Such high number of approvals in Oct have only happened in the past in FY2010 and FY2012. FY2012 is not a good example as the inventory had gone down considerably. Hence, I am trying to look at data from FY2010.

[qesehmk]

Jagan - so then you agree that mathematically it is possible for EB2I to reach its annual limit in Q1 itself but that won't happen until end of Q1.

Q,

Thanks for the detailed explanation. Whatever you mentioned makes perfect sense.