EB2-3 Predictions (Rather Calculations) 2015-2020

[Spectator]

In the Silva v. Bell case, the federal government agreed with plaintiffs that “relief, in the form of a program to recapture and reissue the wrongfully issued visa numbers, is appropriate.” Visas were wrongfully issued in another category and court asked the agency to correct the mistake.

http://openjurist.org/605/f2d/978

In Silva, the court ordered the legacy Immigration and Naturalization Service (INS) to recapture immigrant visa numbers that were misallocated; the agency had erred by counting the set-aside immigrant visa numbers of Cuban refugees against the visa quota for all nationals of the Western Hemisphere between 1968 and 1976. Additionally, in Galvez, the court found that the aggrieved plaintiffs had been denied LPR status for which they were eligible and ordered the U.S. Secretary of State to issue visa numbers that would be charged against the remaining visa number allotment from the prior year. According to the Galvez court, the “INS has a statutory obligation to issue visas to qualified applicants to the full extent of the annual quota limits established by Congress.”

8 U.S.C. 1156 - Unused immigrant visas

"If an immigrant having an immigrant visa is denied admission to the United States and removed, or does not apply for admission before the expiration of the validity of his visa, or if an alien having an immigrant visa issued to him as a preference immigrant is found not to be a preference immigrant, an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien."
Congress did not specify what would happen if a visa is wasted by the agency's inefficiency, probably because Congress did not expect any visas to go wasted, specially when there is enough demand. Therefore, agency inefficiency and apathy should not be allowed to defeat legislative intent. Unfortunately, that is exactly what happens.

In the L****s Kerry case, the judges at various levels rejected the Silva analogy for what seem fairly clear reasons.

In Silva, the Cuban refugees were originally awarded visas from a preference category allocation. Subsequently, it was determined that they were not preference immigrants.

The law, under INA 206 (8 USC 1156), specifically deals with this situation and those visas that were actually issued erroneously to non preference immigrants may be reissued to preference immigrants.

The EB3 situation is not the same. It involves the non issuance of visas up to the full allocation and possibly the erroneous issuance of visas to a different preference category. Neither case is dealt with under INA 206, nor is there any other law that allows issuance of visas up to the statutory limit after the event, or recapture of previous visas to do so.

In fact, if EB3 had extra visas issued up to their limit, then to stay within the overall FY2015 EB limit, some EB2 approvals might have to be revoked.

I've spoken about the raw deal EB3 has been getting for years - EB3-ROW would have been current some time ago and EB3-I would have benefited from fall across within EB3 for much longer. I think the only viable solution within the existing constraints is to issue all EB3 visas by no later than the end of August and leave September purely to deal with consular returns. That would mean moving the EB3-I dates forward slightly earlier than CO has been prepared to do so up to date - something most people think should be done anyway.

This is my last on the subject.

[geterdone]

Sorry to state the obvious .. but nobody else is going to do it for you and other backlogged folks. This can not be a pass time activity. This will require serious commitment. My experience is that people tend to complain about backlogs and how their life is miserable etc but at the end of the day do not have the courage to do anything about it. That's why we have dumb organization asking donations and probably receiving it for making a show about advocacy. Advocacy is cosmetics if at all. Immigration is a much more strategic issue for DoS than you think. USCIS are just paper pushers. It's the DoS that has interest in keeping country quota not USCIS. DoS is not Evil. They have their legitimate objectives but the backlogged community must stand up and highlight the gross injustice. Anyway ... my last on this topic. I already got my GC long time back. I am just highlighting the need to do something beyond advocacy. Take my advice for what it's worth

I am no expert in this but from what I understood this cannot be challenged in the court. I think there is something in the law that only congress can do something.

I was also going through the manual for I-485 few days back and I saw a statement that no discrimination based on country of origin will be done and below that they have the numerical limitation explained. I think they have worded it such that proving discrimination is difficult.

Again I may be wrong

[abcx13]

Sorry to state the obvious .. but nobody else is going to do it for you and other backlogged folks. This can not be a pass time activity. This will require serious commitment. My experience is that people tend to complain about backlogs and how their life is miserable etc but at the end of the day do not have the courage to do anything about it. That's why we have dumb organization asking donations and probably receiving it for making a show about advocacy. Advocacy is cosmetics if at all. Immigration is a much more strategic issue for DoS than you think. USCIS are just paper pushers. It's the DoS that has interest in keeping country quota not USCIS. DoS is not Evil. They have their legitimate objectives but the backlogged community must stand up and highlight the gross injustice. Anyway ... my last on this topic. I already got my GC long time back. I am just highlighting the need to do something beyond advocacy. Take my advice for what it's worth

Well, I'm not a lawyer and don't intend to quit my day job, hence why I was asking other people! Anyway, I think the statute is clearly discriminatory but it's probably legal since it's survived for so long...and arguably it's not discriminatory since each country gets the same allocation.

Pappu and the others there have gone crazy. The comments from Siskind and Mehta clearly support our position...what a bunch of childish idiots. Oh, and their brief had a number of typos and poor grammar.

[vyruss]

Well, I'm not a lawyer and don't intend to quit my day job, hence why I was asking other people! Anyway, I think the statute is clearly discriminatory but it's probably legal since it's survived for so long...and arguably it's not discriminatory since each country gets the same allocation.
.

I am not sure if something is non-discriminatory since it survived for a long time. The mere bucketing of people by country of origin should make it discriminatory. Imagine a law that says for a certain job category we will interview 2 whites and 2 blacks. Because we interviewed equal number of whites and blacks it is non-discriminatory. To make it non-discriminatory the broad brush says equal opportunity for all races. If you extrapolate this to the employment based immigration (say H1B for simplicity) is non-discriminatory because apparently the said job was open to person of every race (assuming legal immigrant) and a person from every origin. Where it becomes tricky is the EB based green card. Can it be argued that Green Card is a benefit that should be allowed to all legal immigrants who meet a certain pre-requisite (like a global priority date cut-off) and because the benefit should be distributed to all races that are eligible, it must be equitable and hence the country cap must be eliminated. On this front the immigration lawyers will not be of help is my opinion as they would rather milk this cash-cow of backlog perpetually.

[mechanical13]

I am not sure if something is non-discriminatory.... of help is my opinion as they would rather milk this cash-cow of backlog perpetually.

Several of us on this forum looked into this several months back and evaluated whether there is any merit in challenging the per-country-limits in court.

The obstacle we found was what is called 'plenary powers of congress', and the 'plenary power doctrine'. The short answer is that we could try to challenge the per-country limits as discriminatory in court, but the courts could very well say that it is not in their power to decide since 'immigration law' in its entirety comes under plenary powers of congress.

The folks who wrote the constitution were idealists, but they were also biased in their own way. It is my understanding that they gave plenary powers to congress to decide on immigration matters precisely because they wanted those 'inside the country' to decide who gets to stay and who gets to not stay.

AND.. if the popularity of Trump is any indication....there is no doubt that there is wide spread anti-immigrant sentiment in this country, and congress is merely reflecting that sentiment.

[gcvijay]

MOTION TO DISMISS filed. Will this have a positive impact on the filing date movement for INDIA and other countries

https://t.co/HANQQzEktO

[gcq]

Several of us on this forum looked into this several months back and evaluated whether there is any merit in challenging the per-country-limits in court.

The obstacle we found was what is called 'plenary powers of congress', and the 'plenary power doctrine'. The short answer is that we could try to challenge the per-country limits as discriminatory in court, but the courts could very well say that it is not in their power to decide since 'immigration law' in its entirety comes under plenary powers of congress.

The folks who wrote the constitution were idealists, but they were also biased in their own way. It is my understanding that they gave plenary powers to congress to decide on immigration matters precisely because they wanted those 'inside the country' to decide who gets to stay and who gets to not stay.

AND.. if the popularity of Trump is any indication....there is no doubt that there is wide spread anti-immigrant sentiment in this country, and congress is merely reflecting that sentiment.

mechanic,
That was my exact thought process when I considered this. Country quota is discriminatory and against constitution's spirit, but INA legalized it. Though congress has 'plenary powers' , it doesn't mean that they can act against the constitution or its intend. That is where supreme court has to make a decision. Unless this issue is brought up before supreme court, we will never know whether country cap can be challenged. One of supreme courts role is to validate congress laws against constitution.

[qesehmk]

mechanic,
That was my exact thought process when I considered this. Country quota is discriminatory and against constitution's spirit, but INA legalized it. Though congress has 'plenary powers' , it doesn't mean that they can act against the constitution or its intend. That is where supreme court has to make a decision. Unless this issue is brought up before supreme court, we will never know whether country cap can be challenged. One of supreme courts role is to validate congress laws against constitution.

Thanks GCQ and mechanic.

I think backlogged candidates must bring this issue serious visibility and let the courts ponder over this topic of how stupid and discriminatory the quotas are. Forget the plenary powers and all other legal jargon. Everybody knows in their heart that such kind of quotas are discriminatory.

This country is not run by idiots. They don't follow the law to the letter. There is a great tradition of following the law in its spirit too. So make an effort. Take small steps. But first organize.

[Spectator]

The April 2016 VB has been published https://travel.state.gov/content/vis...pril-2016.html

EB2-I moves to 08NOV08 (3 weeks)
EB3-I moves to 08AUG04 (3 weeks)

[mfd1402]

As per Q blog http://www.qesehmk.org/forums/showth...2012-vs-FY2011

EB2ROW in 2015 got approx 29K visas , not sure how that is possible I thought the whole reason why EB2I did not move much was because there was a surge in eb2row demand 29K for eb2row seems to suggest approx 6K SO for Eb2I unless I am missing smomething .... Spec pls explain

[Spectator]

As per Q blog http://www.qesehmk.org/forums/showth...2012-vs-FY2011

EB2ROW in 2015 got approx 29K visas , not sure how that is possible I thought the whole reason why EB2I did not move much was because there was a surge in eb2row demand 29K for eb2row seems to suggest approx 6K SO for Eb2I unless I am missing smomething .... Spec pls explain

What's to explain.

Actual spillover available was :

THEORETICAL SPILLOVER
EB1 ---------- (578)
EB2-M ------- 1,534
EB2-P --------- 679
EB2-ROW ------- 359
EB4 ------------ 10
EB5 ----------- 517
TOTAL ------- 2,521


Taking EB2-ROW, they had an allocation of 29,816 (41,412 - (4*2,899))
EB2-ROW actually used 29,457 visas, which was 359 less than their allocation.

EB1 basically used all the spillover from EB4 and EB5. There should not have been any SO from EB5.

Most spillover came from EB2-Mexico.

EB2-I received 4,336 more visas than their initial allocation of 2,899 for a total of 7,235. That's more than the available SO. It can't have come from FB because India used all their FB allocation (unlike China). It was an over allocation which was ultimately balanced because EB3 could not reach their allocation limit and some visas were wasted.

7,235 may not seem many, but frankly, it could have been under 5,000 if all allocations were made correctly and to the fullest extent.

Let's also not forget that in FY2015, 4.8k extra visas were available to EB from underuse of FB the previous FY.

Without those, it's likely that EB2-I would have received 4k total approvals.
EB1 and EB4 probably would have had some Countries retrogressed.
It was a very fine line and the extra FB visas made a huge difference.

In FY2016, only 0.3k FB visas are available.

[EB3Iwaiting]

7,235 may not seem many, but frankly, it could have been under 5,000 if all allocations were made correctly and to the fullest extent.

Visas were taken out of EB3 and given to EB2. Is it because EB2I was over allocated in the beginning? Will explain the non movement of EB2I in the last 2 months and also the retrogression of EB3I in October.

[vyruss]

The April 2016 VB has been published https://travel.state.gov/content/vis...pril-2016.html

EB2-I moves to 08NOV08 (3 weeks)
EB3-I moves to 08AUG04 (3 weeks)

EB2 movement is a blip. Probably sign of unavailability in the near term.

[zenmaster]

EB2 is the new EB3 i guess wait for good movement continues until last quarter

[Jagan01]

As per Q blog http://www.qesehmk.org/forums/showth...2012-vs-FY2011

EB2ROW in 2015 got approx 29K visas , not sure how that is possible I thought the whole reason why EB2I did not move much was because there was a surge in eb2row demand 29K for eb2row seems to suggest approx 6K SO for Eb2I unless I am missing smomething .... Spec pls explain

I think the point you are missing, is that Spec does not count EB2M and EB2P in the EB2ROW count. If you are looking at Spec's data then you need to understand that EB2-nonIC = EB2ROW + EB2M (Mexico) + EB2P (Phil).

EB2 non India China (EB2-nonIC) = 29,457 + 1,365 + 2,220 = 33042

[harapatta]

Visa Bulletin for April is out ...

https://travel.state.gov/content/vis.../bulletin.html

[vishnu]

spec: you don't think CO is already applying spillover do you? he is likely just using EB2 allocation so far..?

[gcy2k07]

spec: I would like to know your thoughts on the following -
- the pending inventory from January increased most likely because of porting. Since most of the increase is in 2008 which EB3I never reached, these cannot be interfile cases - correct?
- in this case, these would be new upgrade I485 applications which should take many months to process. Then would be be a good assumption that these cases will not eat up the spillover this year?
- also, isn't it good for long pending cases that the dates are not moved until the last quarter because this would reduce the porting applications?
Thanks!

[Spectator]

spec: you don't think CO is already applying spillover do you? he is likely just using EB2 allocation so far..?

Possibly not to date, but the dates probably can't move any further without doing so.

spec: I would like to know your thoughts on the following -
- the pending inventory from January increased most likely because of porting. Since most of the increase is in 2008 which EB3I never reached, these cannot be interfile cases - correct?

They can't be interfiling cases in the sense that there is not an existing I-485 under EB3. The I-485 submitted would be their first one and under EB2.

- in this case, these would be new upgrade I485 applications which should take many months to process. Then would be be a good assumption that these cases will not eat up the spillover this year?

Yes, it will take some time to adjudicate, but they have 9-12 months of the FY for that to happen. It's likely those cases in the January 2016 USCIS Inventory can be approved this FY.

- also, isn't it good for long pending cases that the dates are not moved until the last quarter because this would reduce the porting applications?
Thanks!

It would reduce the ability of porters with later PD to file an I-485 under EB2 who haven't done so to date. I'm not sure it will make much difference because, in Oct/Nov 2015, people could file an I-485 with a PD up to July 2009. There's nearly 1K of new applications in 2009 up to July. There's plenty of time for those to be preadjudicated before the end of the FY and they will have valid Medical Reports. Currently, the Final Action Date for EB2-I doesn't seem likely to exceed that date.

[Silent_Jedi]

I am not sure if something is non-discriminatory since it survived for a long time. The mere bucketing of people by country of origin should make it discriminatory. Imagine a law that says for a certain job category we will interview 2 whites and 2 blacks. Because we interviewed equal number of whites and blacks it is non-discriminatory. To make it non-discriminatory the broad brush says equal opportunity for all races. If you extrapolate this to the employment based immigration (say H1B for simplicity) is non-discriminatory because apparently the said job was open to person of every race (assuming legal immigrant) and a person from every origin. Where it becomes tricky is the EB based green card. Can it be argued that Green Card is a benefit that should be allowed to all legal immigrants who meet a certain pre-requisite (like a global priority date cut-off) and because the benefit should be distributed to all races that are eligible, it must be equitable and hence the country cap must be eliminated. On this front the immigration lawyers will not be of help is my opinion as they would rather milk this cash-cow of backlog perpetually.

I am totally in tune with your argument. Country quota is a legally sanctioned discriminatory feature of the immigration laws. In absolute moral sense it is discriminatory but in the US legal sense it is not. Congress has passed such a law. What to say! But the Diversity Visa (lottery) is the worst indiscriminate thing they have thought of and none of the politicians are talking about it. It purportedly makes the immigrant population diverse but then they want geographic diversity in employment-based candidates. It doesn't make any sense why they want to dual-track diversity concept in immigration.

[whereismygc]

In this interest of this group we are publishing this information here.

While updating the forecast at WhereismyGC we realized that during 2015 there may have been an additional wastage of 4000 across EB23IC. Here is the rationale.

1. The combined visa approvals across EB23IC was approx 14261.
2. The combined inventory reduction across EB23IC was 10658.

Thus there are 3603 visa numbers that are assigned to cases that we can't account for.

The reason we think they can't be accounted for is because EB23IC categories are closed. These categories generally will port to each other (mostly 3 to 2) but not anywhere else. There may be 10-20-30 people who may port to ROW by virtue of marriage to an ROW spouse etc.

So the question is where did 3600 visas go?

The only logical explanation that we can think of is that perhaps those are the porting cases from EB3 I to EB2. We wonder if it is likely that those 3600 cases received 2 visas each one for EB3 case and one for EB2 case.

We do not know. It might be worthwhile for interested people to look into and pursue some action. If our fears are true then it would be such a pitty to have those visas wasted when EB23I is chronically backlogged.

Update
There were 257 EB CP approvals for India in 2015 for EB2-3 categories. Thus the number of unaccounted cases to explain drops from 3600 to approx 3350.

Whether one looks Q over Q or compare look at Y over Y 485 inventory - one is going to arrive at the same number. We prefer Y over Y approach.

In terms of what can be done - guys we leave it to you. WhereismyGC is a business. We only highlighted this issue in public interest of EB-I community.

[insane_yogi]

Hi All- Wanted to get your feedback on my specific case. Please move to appropriate thread if required.
i have a EB2 application with Oct 2011 priority date (currently on H1). My sister a US passport holder is willing to sponsor my GC.
1. Since Iam already in US, how soon will i get an EAD and then GC?
2. Lets say i get an EAD in few months through sponsorship by my sister, will i be able to keep my EB2 application priority date?
3. What options will i have since i understand getting a GC through family based i.e. FB4 might take atleast 8 - 10 years to be current.

insane Yogi

[vyruss]

In this interest of this group we are publishing this information here.

While updating the forecast at WhereismyGC we realized that during 2015 there may have been an additional wastage of 4000 across EB23IC. Here is the rationale.

Thus there are 3603 visa numbers that are assigned to cases that we can't account for.

So the question is where did 3600 visas go?

This is a painful conclusion Q. Thanks for bringing this information to light. What are the avenues that can be explored to shed more light on this issue?

[Spectator]

I think it is a bit dangerous (certainly difficult) to make any conclusions based on the USCIS Inventory. That only represents an incomplete snapshot, even for India. It only shows net numbers. Addition mask reductions and vice versa.

Receiving 2 visas would be an extreme and unlikely case IMHO.

First, there would have to be 2 independent I-485 applications (1 each in each category), since only one visa can be allocated per approved I-485 application. That would limit the cases to pre August 2007 PD since no EB3-I case could have been submitted post that date.

Secondly, those applications would have to have remained unconsolidated, which means they would probably have to have different A-numbers.

And thirdly, both cases would have to have been independently adjudicated and approved.

It is not a "closed system" because EB3-I have applicants with approved I-140 and PDs later than July 2007 who can retain the PD for an EB2 I-485 application. Those applicants would not (and cannot) be shown in the Inventory under EB3-I.

It's much more likely that missing numbers relate to post July 2007 porters. They would never have appeared in the EB3-I Inventory, so there could be no reduction. Nor would they necessarily appear in the EB2-I Inventory if they were approved before USCIS could include the case in an Inventory.

I'm not claiming that's anywhere close to a perfect explanation, but it is much more likely than the 2 visa theory. I would be have far been more surprised had the reduction in the USCIS Inventory equaled (or even been remotely close to) the actual approval numbers.

Edit:-

If I look at the reductions on a quarterly basis, then I only see a difference of 1k or less based on reductions against the actual DOS figures. Given the net nature of the figures, that's closer than I would have thought.

Edit:-

I went through it a bit more thoroughly :

For Dates that were Current.

------------ Inventory --- Actual ------ Diff
EB2 Change --- (6,125) --- 7,235 ---- 1,110 ***
EB3 Change --- (8,063) --- 7,026 --- (1,037)

Total ------- (14,188) -- 14,261 ------- 73


*** (6,125) reduction for EB2 includes reduction in EB3 for dates that were not current under EB3 (2,742).

Using a YoY approach is fundamentally flawed - the only advantage is speed and simplicity.

a) A YoY approach cannot properly account for COD movement during the FY and therefore the reductions outside the COD. This is particularly true if there are large movements late in the FY.

b) Additions to the Inventory later in the FY will mask reductions apparent in previous periods using a QoQ approach. This leads to underestimating the reductions.

Even using a QoQ approach is imperfect, since it is still susceptible to the net nature of the USCIS Inventories. The best that can be done is to look at months with reductions only and consider months with an addition as a zero reduction. That's not necessarily correct, because there still could have been reductions in that month, but they are masked by higher additions than are apparent from the net increase.


There were 102 EB2-I and 155 EB3-I Consular approvals that would not be part of the USCIS Inventory.

[jimmys]

Hi All- Wanted to get your feedback on my specific case. Please move to appropriate thread if required.
i have a EB2 application with Oct 2011 priority date (currently on H1). My sister a US passport holder is willing to sponsor my GC.
1. Since Iam already in US, how soon will i get an EAD and then GC?
2. Lets say i get an EAD in few months through sponsorship by my sister, will i be able to keep my EB2 application priority date?
3. What options will i have since i understand getting a GC through family based i.e. FB4 might take atleast 8 - 10 years to be current.

insane Yogi

2. Lets say i get an EAD in few months through sponsorship by my sister, will i be able to keep my EB2 application priority date?

If you have approved I-140, yes, you can retain your earliest priority date.