EB2-3 Predictions (Rather Calculations) 2015-2020

[Spectator]

how can you file approved I 140 which is for EB2 for EB 3?

I believe you need to have EB3 PERM first to file I 140. Isn't it?

There's no such thing as an "EB2" PERM or an "EB3" PERM.

At the I-140 stage, USCIS determines whether the PERM satisfies the minimum requirements for the EB category requested in the I-140 application.

Any PERM that satisfies the minimum EB2 requirements of "an advanced degree or bachelors plus 5 years progressive experience" will automatically satisfy the minimum EB3 requirements of "a bachelors degree or 2 years experience required".

A PERM doesn't expire, as long as it is used to support an I-140 application within 180 days of certification. Once that condition is satisfied, it can be used to support further I-140 applications, unless revoked by USCIS for cause.

[Spectator]

Also - would a downgrade mean an in-person interview as it would be a new 485? Cursory googling says no. http://nairlaw.com/blog/posts/12

It wouldn't require a new I-485 if one is already pending.

When the EB3 PD became current, a written request to interfile the existing I-485 to the new EB3 I-140 would be made. That's also what the article says.

Whether that would trigger an interview is another question.

USCIS actively discourages multiple I-485 applications.

[texas_]

Nice; Thanks for the Information Spec.

[skpanda]

There's no such thing as an "EB2" PERM or an "EB3" PERM.

At the I-140 stage, USCIS determines whether the PERM satisfies the minimum requirements for the EB category requested in the I-140 application.

Any PERM that satisfies the minimum EB2 requirements of "an advanced degree or bachelors plus 5 years progressive experience" will automatically satisfy the minimum EB3 requirements of "a bachelors degree or 2 years experience required".

A PERM doesn't expire, as long as it is used to support an I-140 application within 180 days of certification. Once that condition is satisfied, it can be used to support further I-140 applications, unless revoked by USCIS for cause.

Thats great news. I have EB2 PD Dec 2010. So if my PD becomes current in EB3, I can file I140 and I485 concurrently and also EAD/AP? Please confirm. Thanks!

[delguy]

There's no such thing as an "EB2" PERM or an "EB3" PERM.

At the I-140 stage, USCIS determines whether the PERM satisfies the minimum requirements for the EB category requested in the I-140 application.

Any PERM that satisfies the minimum EB2 requirements of "an advanced degree or bachelors plus 5 years progressive experience" will automatically satisfy the minimum EB3 requirements of "a bachelors degree or 2 years experience required".

A PERM doesn't expire, as long as it is used to support an I-140 application within 180 days of certification. Once that condition is satisfied, it can be used to support further I-140 applications, unless revoked by USCIS for cause.

If a PERM satisfies EB2 requirement for job X how can the same satisfiy EB3 requirements for job Y with lower standards? When the requirements are lower for EB3 that means more US citizens or GC holders could have applied for the same. Witjout that I doubt USCIS will accept that PERM for EB-3. I understand USCIS saying that a particular PERM dont meet the high bar for EB-2 and then someone applies for EB-3. However, once a PERM meets EB-2 standards; the same couldn’t be used for EB-3 as that would exclude a large pool from applying initially unless the language in PERM such that it satisfies both EB-3 and EB-2. For example - candidate should be a Masters in IT along with 1 year experience or a graduate with 3 years experience.

[iatiam]

If a PERM satisfies EB2 requirement for job X how can the same satisfiy EB3 requirements for job Y with lower standards? When the requirements are lower for EB3 that means more US citizens or GC holders could have applied for the same. Witjout that I doubt USCIS will accept that PERM for EB-3. I understand USCIS saying that a particular PERM dont meet the high bar for EB-2 and then someone applies for EB-3. However, once a PERM meets EB-2 standards; the same couldn’t be used for EB-3 as that would exclude a large pool from applying initially unless the language in PERM such that it satisfies both EB-3 and EB-2. For example - candidate should be a Masters in IT along with 1 year experience or a graduate with 3 years experience.

What you said "theoretically" makes sense. But given the fact that thousands of people have downgraded proves that it doesn't matter. It's probably the same logic with with QA leads and Java programmers claim GCs under EB1C category.

Iatiam

[Spectator]

However, once a PERM meets EB-2 standards; the same couldn’t be used for EB-3 as that would exclude a large pool from applying initially unless the language in PERM such that it satisfies both EB-3 and EB-2. For example - candidate should be a Masters in IT along with 1 year experience or a graduate with 3 years experience.

That is exactly the situation, when the existing PERM (previously used to support an EB2 I-140) is used for an EB3 I-140.

The minimum requirements for the job haven't changed and whether there were other applicants who could apply was tested before, when the PERM was originally submitted. It's excluding no one.

Just because an I-140 is applied for under EB3 doesn't mean that only the minimum requirements for EB3 are required to do the job.

All that is required is that they are equal to, or higher than the minimum requirements for EB3. There's no limit on how high the requirements are, as long as they are required for the position.

There's no requirement to file under EB2, even if the education/experience required supports it.

[Draper]

I followed the Chinese forums (with terrible translation) when the China downgrading phenomenon first started.

From memory:

1) Most Chinese already had an EB2 I-140 approved with the same company they were working for.

2) The company used the original PERM certification used for the EB2 I-140 approval to apply for an I-140 under EB3.

3) A bit fuzzy on this, but I don't think the new I-140 can be Premium Processed, because the original PERM certification is not attached. You'd need to check if this has changed.

4) A request to Interfile the basis of an existing I-485 from EB2 to EB3 must be made in writing to USCIS. It can only be made when the PD for the new category is current.

5) An I-485 can only be attached to a single I-140 at a time (EB2 or EB3 in this case).

6) If you wanted to switch back to EB2, then a new interfiling letter to USCIS requesting this would be required.

7) There's no concept of the I-485 being approved on the first category to become current.
Many Chinese have previously bounced between EB2 and EB3, chasing the best Final Action Date.

So effectively all perms are valid forever when an i-140 has been filed

[EB2-03252009]

Important AAO Dec Affecting EB-1C Applicants in U.S.

Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018) clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employ for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the one-in-three foreign employment requirement for EB-1C immigrant classification as a multinational manager or executive. On the same day of March 19, 2018, the USCIS issued a Policy Memorandum adopting this decision as "precedent" binding decision for any future cases. Read on.
For the last few years, the number of immigrants using this EB-1C classification has steadily increased, affecting EB-1 immigrant visa numbers backlog for Indians and Chinese. This precedent and binding decision will somehow affect some of them who stay here for two years after their leaving from their employers in their home countries.

http://www.immigration-law.com/

[Spectator]

This precedent and binding decision will somehow affect some of them who stay here for two years after their leaving from their employers in their home countries.

http://www.immigration-law.com/

The full decision is here: https://www.uscis.gov/sites/default/...ter-of-S-P.pdf

Let's be clear about what happened.

The person had the required experience as a manager with Foreign Company F when they first came to the USA and joined Affiliate A. Had they remained employed by Affiliate A, the passage of time would not have had any effect on their eligibility for EB1C.

In this case, the person left Affiliate A and went to work for an entirely unrelated Company Z for 4 years.

They then rejoined Affiliate A. At the time they rejoined Affiliate A, more than the 3 years in which they needed to have worked at least 1 year for the the Foreign Company F had passed, so they failed too meet this requirement.

Affiliate A tried to claim that only the situation at the first entry to the USA should be considered.

Terrible explanation - it's much easier to just read the USCIS Memo.

[iatiam]

The full decision is here: https://www.uscis.gov/sites/default/...ter-of-S-P.pdf

Let's be clear about what happened.

The person had the required experience as a manager with Foreign Company F when they first came to the USA and joined Affiliate A. Had they remained employed by Affiliate A, the passage of time would not have had any effect on their eligibility for EB1C.

In this case, the person left Affiliate A and went to work for an entirely unrelated Company Z for 4 years.

They then rejoined Affiliate A. At the time they rejoined Affiliate A, more than the 3 years in which they needed to have worked at least 1 year for the the Foreign Company F had passed, so they failed too meet this requirement.

Affiliate A tried to claim that only the situation at the first entry to the USA should be considered.

Terrible explanation - it's much easier to just read the USCIS Memo.

Thanks for the explanation, Spec. How will this affect EB1C filings? Oh law firm makes it sound like it would have an impact.

Iatiam

[qesehmk]

Affiliate A tried to claim that only the situation at the first entry to the USA should be considered.

Thanks Spec. That's clear for me. What is not clear to me is where was the room for ambiguation in the first place. It was always clear to me that the 1 in 3 condition always speaks to the 3 years preceding the filing of GC under EB1.

I believe this is going to significantly reduce India EB1 filings. The reason being there are many Indian EB2 who hopped from one company to next using their old priority dates and then shopped for an EB1 using their past experience with an India centric outsourcing firm. I think USCIS simply failed to follow their own rules and allowed this mess. But it is only fair that they corrected it. EB2-India will benefit ... but most likely next year onwards because EB1 backlog will need to be cleared off such applicants as well as people who were stuck in EB1 due to such backlog.

[Spectator]

Thanks Spec. That's clear for me. What is not clear to me is where was the room for ambiguation in the first place. It was always clear to me that the 1 in 3 condition always speaks to the 3 years preceding the filing of GC under EB1.

I believe this is going to significantly reduce India EB1 filings. The reason being there are many Indian EB2 who hopped from one company to next using their old priority dates and then shopped for an EB1 using their past experience with an India centric outsourcing firm. I think USCIS simply failed to follow their own rules and allowed this mess. But it is only fair that they corrected it. EB2-India will benefit ... but most likely next year onwards because EB1 backlog will need to be cleared off such applicants as well as people who were stuck in EB1 due to such backlog.

Q,

Possibly you know better than me, but I tended to think that most Indian EB1-C were from the WITCH type companies and that most of those came direct to the company and never left for another Company before an EB1C was applied for.

Under those circumstances, the EB1-C petition could be applied for after any number of years and would not limited to just the 2 years after they joined the Company in the USA.

In promulgating the implementing regulations, the former Immigration and Naturalization Service concluded that it was not the intent of Congress to disqualify “nonimmigrant managers or executives who have already been transferred to the United States” to work within the same corporate organization. See 56 Fed. Reg. 30,703, 30,705 (July 5, 1991).

Thus, the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) allows USCIS to look beyond the three-year period immediately preceding the filing of the I-140 petition, when the beneficiary is already working for a qualifying U.S. entity.

Without such a provision, a beneficiary employed in the United States by a qualifying organization in a nonimmigrant status for more than two years would not be eligible for immigrant classification as a multinational manager or executive.

If my feeling is correct, I don't think the precedent decision is going to significantly lower the number of EB1-C approvals.

You're correct that people won't be able to hop Companies after coming to the USA to join an MNC and think they can then return to the MNC for an EB1-C petition at a much later date.

I think you're in a much better position to judge how much that happens, but if they had management experience with the MNC abroad before joining the US operation, that seems a disincentive to switch jobs.

[qesehmk]

Thanks Spec for explaining what created the ambiguity (i.e. USCIS themselves allowing 1 in 3 to not be applied when the candidate has been more than 2 years in US).

To answer why I think that is wrong - I will pick on your last sentence.

if they had management experience with the MNC abroad before joining the US operation, that seems a disincentive to switch jobs.

This is not true IMHO in most cases. My judgement (no empirical evidence ...but a pretty good understanding of how things work) is that majority of EB1Cs came to US generally at the lowest level and rose through the ranks. So they are quite qualified for be managers. That I do not doubt. But then this scenario is no different than an EB2 who is employed with an American company and is a director or a VP. The fact that s/he never served in India excludes them from benefitting from EB1C and is unfair.

The original USCIS condition was perfect - where the company is forced to send an employee to US as a management person.

Many times they are sending their average workers who later on become management or sometimes not. Team leader, project manager or even a manager is not really management. Management should be defined VP and above or perhaps director and above. Today USCIS is allowing this injustice to happen and they are not following their own rule to either letter or intent.

As you know I am an extremely pro immigrant person. But whether you look at it from "Justice / Fairness" angle or simply from "Good economic sense" perspective - the current decision is a very welcome step and they should broaden it to ALL applicants and start the 3 year clock to preceding 3 years for EVERYBODY including foreign nationals employed by American companies regardless whether they served abroad or not.

Q,

Possibly you know better than me, but I tended to think that most Indian EB1-C were from the WITCH type companies and that most of those came direct to the company and never left for another Company before an EB1C was applied for.

Under those circumstances, the EB1-C petition could be applied for after any number of years and would not limited to just the 2 years after they joined the Company in the USA.


If my feeling is correct, I don't think the precedent decision is going to significantly lower the number of EB1-C approvals.

You're correct that people won't be able to hop Companies after coming to the USA to join an MNC and think they can then return to the MNC for an EB1-C petition at a much later date.

I think you're in a much better position to judge how much that happens, but if they had management experience with the MNC abroad before joining the US operation, that seems a disincentive to switch jobs.

[EB2-03252009]

http://canteyhanger.com/news/immigration-news/

EB-2 India. Unlike the lack of visibility into EB-2 China demand, Charlie has significant visibility in his pending demand file for India. Members should therefore expect intermittent holding of the final action date coupled with continued gradual movement without volatility. Charlie is unable to advance EB-2 India more aggressively due to concerns about EB-3 to EB-2 upgrades. If there are otherwise unused EB-2 Worldwide numbers later this fiscal year, it may allow EB-2 India to advance further. The EB-2 India final action date advances one week in April to December 22, 2008. Charlie remains hopeful that the final action date in this category will get to early 2009 before the end of this fiscal year.

Two big questions...
1. Are there still upgrades from EB3 to EB2?
2. Will there be unused EB2-ROW later this yr?

[srimurthy]

As you know I am an extremely pro immigrant person. But whether you look at it from "Justice / Fairness" angle or simply from "Good economic sense" perspective - the current decision is a very welcome step and they should broaden it to ALL applicants and start the 3 year clock to preceding 3 years for EVERYBODY including foreign nationals employed by American companies regardless whether they served abroad or not.

If this is only an interpretation correction by USCIS ("the USCIS issued a Policy Memorandum adopting this decision as "precedent" binding decision for any future cases."), then how come it will apply only to cases going forward and not to all the ones that are already in Q, or the ones that are already approved.

[Immigo]

Q,


If my feeling is correct, I don't think the precedent decision is going to significantly lower the number of EB1-C approvals.

There are many instances where an employer applies for L1A or EB1C for L1B / H1B non-immigrant employee. Many of them do not have management responsibilities in the first two years. If at the time of the original L1B/H1B visa application, the employee responsibilities did not include management responsibilities (even if the the employer claims that the employee was a manager abroad), I wonder if this ruling can be extended to deny those EB1-C cases. If this happens, it can impact a larger population of EB1-C applicants.

[Spectator]

Thanks Spec for explaining what created the ambiguity (i.e. USCIS themselves allowing 1 in 3 to not be applied when the candidate has been more than 2 years in US).

To answer why I think that is wrong - I will pick on your last sentence.

This is not true IMHO in most cases. My judgement (no empirical evidence ...but a pretty good understanding of how things work) is that majority of EB1Cs came to US generally at the lowest level and rose through the ranks. So they are quite qualified for be managers. That I do not doubt.

But then this scenario is no different than an EB2 who is employed with an American company and is a director or a VP. The fact that s/he never served in India excludes them from benefitting from EB1C and is unfair.

Q,

If the "majority of EB1Cs came to US generally at the lowest level and rose through the ranks", then they would not qualify for EB1-C.

It's a requirement for EB1-C that they worked in a Managerial or Executive position abroad for the 1 year in 3.

It's not enough to have simply worked in any position abroad, before becoming a Manager in the USA.

[qesehmk]

Q,

If the "majority of EB1Cs came to US generally at the lowest level and rose through the ranks", then they would not qualify for EB1-C.

It's a requirement for EB1-C that they worked in a Managerial or Executive position abroad for the 1 year in 3.

It's not enough to have simply worked in any position abroad, before becoming a Manager in the USA.

I think that standard is fuzzy and malleable. USCIS today is probably taking these companies at their word. I am pretty sure that the reality is closure to what I described.

[Jagan01]

I think that standard is fuzzy and malleable. USCIS today is probably taking these companies at their word. I am pretty sure that the reality is closure to what I described.

Lets be honest. Most EB1Cs are from WITCH companies and they have a couple reports (possibly new college grads). We all know they are not deserving the special treatment and the added scrutiny is always welcome.

I still fail to understand why they have no prevailing wage check for EB1C. The day the prevailing wage is established (lets just say its same as a director in USA - take 200k total) , there will not even be 4k Indian EB1C managers.

[redsox2009]

I was running the numbers.

Year 2007, 2008 and 2009 Perm Numbers vs I-485 approvals


Since year 2012 to 2017 and current pending 485 applications under EB-2 all together are 79368.*

* I pulled 485 values from Aug 2017 Inventory report for the period Aug 2007 to April 2009 and added to total approved cases since 2012.

6047 EB3 numbers were reduced from year 2003 to 2007 during the period 2012 to 2017.

Total Number of Perm approvals from Aug 2007 to April 2009 is 40013.

Based on these numbers I'm expecting EB3 values should be less than 4k from Aug 2007 to April 2009. Big question would be if the CO will be satisfied with the 4k or will request more?

[hope21]

Exactly, forget about 200k, we all know most(90-95%) of these WITCH companies have managers which are in IT and mostly are getting paid around 65k-80k. In IT we know that even if you are Level 1 programmer/developer you are paid around 60-80k depending upon your location of working. If H1 has prevailing wage requirements, then why not these so called WITCH managers have that requirement in IT. Let's say even if there is minimum wage requirement of around 130k for management, if you have those requirements in place, this will almost put an end to the EB1IC abuse and most of EB2I folks will be current. Why can't CO/USCIS think of this basic abuse and correct it?

[dubnis]

I was running the numbers.

Year 2007, 2008 and 2009 Perm Numbers vs I-485 approvals


Since year 2012 to 2017 and current pending 485 applications under EB-2 all together are 79368.*

* I pulled 485 values from Aug 2017 Inventory report for the period Aug 2007 to April 2009 and added to total approved cases since 2012.

6047 EB3 numbers were reduced from year 2003 to 2007 during the period 2012 to 2017.

Total Number of Perm approvals from Aug 2007 to April 2009 is 40013.

Based on these numbers I'm expecting EB3 values should be less than 4k from Aug 2007 to April 2009. Big question would be if the CO will be satisfied with the 4k or will request more?

Amigo!
You mean 40,013 or 4,013 PERM approvals between Aug 2007-Apr 2009 for EB3I? The impression was either less people filed PERM in EB3I category or got ported to EB2I. Just trying to understand approximately how many total new I485 cases are we expecting or estimating here for the above period. Btw, my EB3I PD is Mar 4 2009. Hence, the curiosity!

[HarepathekaIntezar]

Lets be honest. Most EB1Cs are from WITCH companies and they have a couple reports (possibly new college grads). We all know they are not deserving the special treatment and the added scrutiny is always welcome.

I still fail to understand why they have no prevailing wage check for EB1C. The day the prevailing wage is established (lets just say its same as a director in USA - take 200k total) , there will not even be 4k Indian EB1C managers.

This is all interesting stuff, but why are we doing this in a Eb2-3 Predictions Forum?

[HarepathekaIntezar]

http://canteyhanger.com/news/immigration-news/

Two big questions...
1. Are there still upgrades from EB3 to EB2?
2. Will there be unused EB2-ROW later this yr?

EB-3 India leaps ahead 11 months to February 1, 2008 in April. It is unclear at this time whether this category will advance or will hold at the same date for May. Members should watch this category closely and should file adjustment of status applications for clients as soon as they are eligible to do so.

I think this is another of those stupid Check-in reporting that I have been seeing. Why does CO not give a prediction for EB3I Dates in May? Don't the AILA Attorney's ask any questions during the check-in? If it is just a monologue, then CO might as well release a written statement and be done with it.Why does he have to show up in person to do this?

@Spectator your take on the above? When does an AOS Application show up in the 'Demand' File? The moment a Receipt Notice is generated? How does CO know those numbers? Does USCIS send DOS a Report of incremental category-wise AOS demand every month before CO releases the VB?