7% Rule Interpretation and its effects on retrogressed countries

[Transformer]

July 2015 Bulletin is out. No movement for EB2I . 01 Oct 2008.

http://travel.state.gov/content/visa...july-2015.html

July VB is a disappointment for EB2I. This is from the visa bulletin for Philippines:

D. PHILIPPINES EMPLOYMENT THIRD PREFERENCE AND
THIRD OTHER WORKER PREFERENCE CATEGORIES ARE
UNAVAILABLE FOR JULY.

Despite two retrogressions of the Philippines Employment Third and Third Other Worker cut-off dates in an attempt to hold number use within the annual limit, it has now become necessary to make the category "Unavailable" for the month of July..

It is possible that some unused numbers from the Second preference category may become available for September use. If not, Philippines Third preference numbers will once again be available beginning October 1, 2015 under the FY-2016 annual numerical limitations.

What confuses me here is how come CO is predicting that unused numbers from 2nd preference will be available to 3rd preference for Philippines? I believe the unused will fall across to other retrogressed contries within EB2. Is there something that I am missing?

[qesehmk]

It is possible that some unused numbers from the Second preference category may become available for September use. If not, Philippines Third preference numbers will once again be available beginning October 1, 2015 under the FY-2016 annual numerical limitations.

What confuses me here is how come CO is predicting that unused numbers from 2nd preference will be available to 3rd preference for Philippines? I believe the unused will fall across to other retrogressed contries within EB2. Is there something that I am missing?

CO is talking about EB2-P perhaps underusing and thus EB3-P may getting those numbers under 7% country limit across all categories.

[Spectator]

It is possible that some unused numbers from the Second preference category may become available for September use. If not, Philippines Third preference numbers will once again be available beginning October 1, 2015 under the FY-2016 annual numerical limitations.

What confuses me here is how come CO is predicting that unused numbers from 2nd preference will be available to 3rd preference for Philippines? I believe the unused will fall across to other retrogressed countries within EB2. Is there something that I am missing?

Transformer,

I believe you are correct that under use by EB2-P of the original allocation within EB2 would FA to EB2-I.

Where CO would have the flexibility (the same has been mentioned for China previously this FY) is where he believes Philippines may not use their full FB allocation. In that case, he can make the shortfall available to the EB categories. That allows South Korea extra approvals every year. I think CO initially gives equal amounts to both EB2 and EB3. CO may be talking about allowing some of that amount (currently allocated for EB2-P approvals) to FD to EB3-P if there is insufficient demand from EB2-P.

As Q says, that is within the terms allowed by the "overall" 7% interpretation.

The only problem with that argument is that Philippines usually uses all their FB allocation (unlike China). Maybe it's different this year.

Alternatively, it is just very badly worded. If EB2-P use less visa numbers, then EB3-P can use more and still stay within the 7% limit within EB. Those extra visas don't come from EB2 though - it just reduces the number available to EB3-ROW. It's double dipping at ROW expense - EB2-I get to use the under use by EB2-P within EB2 and EB3-P also get to use that under use by EB2-P in EB3. The losers are always EB3-ROW, since the overall allocation to EB3 remains unchanged.

It's the best explanation I can give.

[qesehmk]

Spec thanks. I believe that CO in the past has used underuse in FB as the reason to allocate more than "7% EB" visas to S Korea. In those cases there was no visa transfer from FB to EB. Basically those countries consumed EB visas only.

What's funny is that -- it distorts other laws such as category limit because then EB3 may end use using more than its allocation because it received visas from EB1 or 2 AND then the underused EB1 or EB2ROW visas don't necessarily fall down or across.

These are the kind of situations and the interpretation of law that is intriguing at best. Not to blame the person CO ... but the entire DOS does have some inherent policy of limiting Indian and Chinese people. Anyway let me stop there and not go on a rant.

Bottomline - although the underuse is reported in FB --- the visas are not used from FB. They are used from EB only.

Transformer,

I believe you are correct that under use by EB2-P of the original allocation within EB2 would FA to EB2-I.

Where CO would have the flexibility (the same has been mentioned for China previously this FY) is where he believes Philippines may not use their full FB allocation. In that case, he can make the shortfall available to the EB categories. That allows South Korea extra approvals every year. I think CO initially gives equal amounts to both EB2 and EB3. CO may be talking about allowing some of that amount (currently allocated for EB2-P approvals) to FD to EB3-P if there is insufficient demand from EB2-P.

As Q says, that is within the terms allowed by the "overall" 7% interpretation.

The only problem with that argument is that Philippines usually uses all their FB allocation (unlike China). Maybe it's different this year.

It's the best explanation I can give.

[Spectator]

What's funny is that -- it distorts other laws such as category limit because then EB3 may end use using more than its allocation because it received visas from EB1 or 2 AND then the underused EB1 or EB2ROW visas don't necessarily fall down or across.

Q,

No, that's not what happens.

The EB3 allocation is fixed, so if Philippines use more, ROW will have less available to them. As you say, any use of spare FB visas does not raise the EB allocation. That would happen if there was FD from EB2, but that is not going to happen (probably in my lifetime).

Anyway let me stop there and not go on a rant.

[qesehmk]

No, that's not what happens.

The EB3 allocation is fixed, so if Philippines use more, ROW will have less available to them. As you say, any use of spare FB visas does not raise the EB allocation. That would happen if there was FD from EB2, but that is not going to happen (probably in my lifetime).

Anyway let me stop there and not go on a rant.

That's questionable Spec. Look at last couple of years of EB3 numbers. Secondly I was not just talking about EB3. I was also referring to EB2 Korea use which granted can come from EB2ROW or EB1 spillover. In either case it eats into an otherwise quota that rightfully should go to most retrogressed country.

But this interpretation of prioritizing 7% across two categories without necessarily transferring the visas is anti-India and anti-China. CO is a mute if not active participant to that.

There is my rant.

[Spectator]

Q,

I'll start by saying I don't agree with it either. I believe the law could be interpreted to say the 7% should be calculated separately for FB and EB. It's senseless to allow the use of FB numbers for 7% purposes if there is no addition to the EB allocation. In that case, of course, next year spillover from FB would also be less.

The use of the 7% across FB and EB only really benefits South Korea (although it appears to have helped China and India as well). I guess you can say that EB2-ROW would use slightly less if South Korea didn't benefit, but the numbers aren't that big (around 500 in EB2 last year and sometimes larger than that). The majority of extra use was in EB3.

The use of 7% within EB only generally only hurts EB3-ROW since category limits are maintained. Under the 7% "rule" EB3-Philippines and EB3-Mexico have, over time, "appropriated" more than 1 years worth of visas from EB3-ROW.

Either the 7% "rule" has primacy, in which case the categories those visas came from should be reduced (hurting spillover), or, the 7% "rule" should have been abolished when the spillover laws were introduced.

As it stands, they both take visas and EB3-ROW is left as the fall guy.

My personal view is that the 7% should be set at a Category level i.e. EB1, EB2 etc. That's simple and everyone would understand it. The old law made sense before the spillover law was introduced, but no longer. The problem would be that many Countries might have to be shown with separate COD under various Categories. Possibly it would be unworkable.

Certainly, FB and EB should have separate 7% limits. The result would be that South Korea would become an additional Country with separate Cut Off Dates. A couple of additional Countries would also have a separate Cut Off Date due to FB use (Dominican Republic, Vietnam).

[qesehmk]

Thanks Spec. I think this is an old difference of opinion between us. But more importantly it is important to retrogressed countries.

So I have moved this in its own thread.

[Spectator]

Q,

I agree it is a subject we unlikely to ever completely agree on.

You believe it hurts China and India - I think it makes little difference to either.

Historically, in EB3, it would have allowed some other ROW Countries more approvals before hitting the EB3 total allocation, so it would not have allowed FA to retrogressed Countries at all. It would have allowed ROW to have become Current earlier, at the expense of Mexico and Philippines still being quite retrogressed. That's a point I have made consistently. EB3-I might have already received FA within EB3 due to ROW becoming Current earlier.

In EB2, the numbers aren't large enough to have made any appreciable difference (a few months maybe).