EB2-3 Predictions (Rather Calculations) 2015-2020

[gs1968]

I am aware. But will be hard to pass once USCIS 2021 starts and DOS has to by existing laws make FB spillover available to EB.


?? Not sure I understand.

I don't think it will be hard to pass but as others have pointed out implementation may be complicated. The existing law dictates the spillover but the same law can be amended by another law which will supersede the initial one. I still agree that based on the timing of legislation at least some of the FB visas will be available to EB. The FB categories are also heavily backlogged and that might dictate some of the urgency of the effort. As you mentioned earlier if a grand immigration Bill comes to pass under a unified Democratic government all of this will be moot

About the second question, I was merely implying that there should not be any unused FB numbers as these would have been allocated to the EB category the following year and used up. Is my reasoning incorrect?

[vsivarama]

The numbers are controlled by DOS. DOS has to say this on day 1. But in reality DOS generally takes a month or 6 weeks before they formally announce it every year.

I stand corrected. @gs1968 - As for the unused visa numbers, I was referring to the calculation made a while back which said the GC numbers recapture could alleviate some of the pain of the backlogged folks. There is a current bill proposal that draws numbers out of that bucket for healthcare workers. The same could be done for FB folks who missed out because of the ban.

[qesehmk]

I don't think it will be hard to pass but as others have pointed out implementation may be complicated. The existing law dictates the spillover but the same law can be amended by another law which will supersede the initial one. I still agree that based on the timing of legislation at least some of the FB visas will be available to EB. The FB categories are also heavily backlogged and that might dictate some of the urgency of the effort. As you mentioned earlier if a grand immigration Bill comes to pass under a unified Democratic government all of this will be moot

About the second question, I was merely implying that there should not be any unused FB numbers as these would have been allocated to the EB category the following year and used up. Is my reasoning incorrect?

On first - technically possible. But I am 90% sure they won't harm EB once DOS declares spillover. So cross the fingers and wait for DOS annoucement.

On second - isn't that what we are discussing over 100K of FB unused numbers from 2020 to be moved to EB use in 2021? I still don't understand your question.

[AceMan]

Let's assume EB receives 110K spillover from FB.

If 35K is the extra visas allocated to EB-3 in FY 2021, I don't think EB-3 India will reach Dec 2011. There are lot of categories backlogged in EB-3. So, the extra visas will be shared among those categories. And, EB-3 India (and other categories in EB-3) CP numbers will pick up speed in FY 21. Given all that, I don't see a filing date for EB-3 India beyond 2010 in FY 21.

EB-2 can be entirely different. It's mostly AOS and extra numbers to be shared only between India and China. If USCIS is willing to process all the excess numbers, it can easily reach 2011. If there's a vertical SO from EB-1, it's an added advantage. But the question is,can USCIS process those many numbers?

The applicants for Eb2/3 ROW since March 2020 till date will be an important number to determine the spillover Eb2 /3 I gets. Google has put the WFH outlook till summer of 2021, and they would have taken that decision based on some solid analytical data. What it can imply is the new candidates may not be rushing to come into US from ROW. CP numbers again will be impacted by this.

Throwing out a number Eb2I getting a good 25-30K, Eb3I about 15K should have the potential to clear 2011 in 2021.

[gs1968]

On first - technically possible. But I am 90% sure they won't harm EB once DOS declares spillover. So cross the fingers and wait for DOS annoucement.

On second - isn't that what we are discussing over 100K of FB unused numbers from 2020 to be moved to EB use in 2021? I still don't understand your question.

To Q
From your lips to God's ears!

[android09]

The applicants for Eb2/3 ROW since March 2020 till date will be an important number to determine the spillover Eb2 /3 I gets. Google has put the WFH outlook till summer of 2021, and they would have taken that decision based on some solid analytical data. What it can imply is the new candidates may not be rushing to come into US from ROW. CP numbers again will be impacted by this.

Throwing out a number Eb2I getting a good 25-30K, Eb3I about 15K should have the potential to clear 2011 in 2021.

Wow that's good news for a lot of people. 2009, 2010 and 2011 people will atleast benefit. For folks beyond 2011, CIR is the only hope.

[Spectator]

I think I have something to add to the conversation that hasn’t been discussed to date.

The law regarding how the FB and EB allocations are computed has already been discussed.

To that, we can add the law that says a maximum of 27% of the allocation can be used in each of the first 3 quarters. Buried away in the regulations is (from memory) a maximum monthly allocation of 10%.

What hasn’t been discussed is when the official determination of the annual limits is made.

CO does his best to give an estimate as early as he can in the Annual Numerical Limits document.

This usually gets published in about November of the FY (very quick).

However, CO needs certain information from USCIS before he can make the official determination:

• the number of immediate relative adjustments in the preceding year and

• the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year.

Without this information, it is impossible to make an official determination of the annual limits since this information is needed, by law, for the calculation.

Until CO has this information (usually received from USCIS in July of the FY), the official line is that the VO bases allocations on the minimum allocations of 226,000 for FB and 140,000 for EB.

If you look in the Visa Bulletin, you will see this language until the official determination of the annual limits is published (usually in the September Visa Bulletin):

2. 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. The dependent area limit is set at 2%, or 7,320.

Even now, the official determination of numerical limits for FY2020 has not been published.

If you look at the September 2019 Visa Bulletin, you will see that is when the official determination of annual limits for FY2019 was published:

F. DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS REQUIRED UNDER THE TERMS OF THE IMMIGRATION AND NATIONALITY ACT (INA)

The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by U.S. Citizenship and Immigration Services (USCIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to make an official determination of the annual limits. To avoid delays in processing while waiting for the USCIS data, the Visa Office (VO) bases allocations on the minimum annual limits outlined in Section 201 of the INA. On July 17th, USCIS provided the required data to VO.

The Department of State has determined the Family and Employment preference numerical limits for FY-2019 in accordance with the terms of Section 201 of the INA. These numerical limitations for FY-2019 are as follows:

Worldwide Family-Sponsored preference limit: 226,000
Worldwide Employment-Based preference limit: 141,918

Under INA Section 202(a), the per-country limit is fixed at 7% of the family and employment annual limits. For FY-2019 the per-country limit is 25,754. The dependent area annual limit is 2%, or 7,358.

You can take two views as to what could happen in FY2021 if new legislation is not passed until the FY has started:

The Pessimistic View

From October 2020 there is no official determination of the numerical limits. Therefore, DOS will have to use the minimum numbers anyway.

Technically, DOS can’t allocate more than 27% of 140,000 for EB per quarter (although I think they normally do, because waiting to make figures official in July wouldn’t leave enough time to distribute any extra allocation).

If legislation is passed before July 2021, when USCIS provide DOS with the information needed to make the official determination, then the new legislation could be taken into account for FY2021.

The Optimistic View

Congress very rarely, if ever, passes legislation that is back-dated. I honestly don't see this changing.

In this case, if legislation is not passed before October 1, 2020 then the existing laws governing determination of the numerical limits for FY2021 would have to be followed.


Not that I think it’s worth anything, but my view is that if legislation that changes how the numerical allocations are calculated for FY2021 is not passed before the beginning of FY2021, then existing law will cover FY2021. In that case, the lawmakers might think about how the FB shortfall might be made up in future FY, but not to the detriment of EB.

Sorry for the long post.

[qesehmk]

my view is that if legislation that changes how the numerical allocations are calculated for FY2021 is not passed before the beginning of FY2021, then existing law will cover FY2021. In that case, the lawmakers might think about how the FB shortfall might be made up in future FY, but not to the detriment of EB.

That's precisely what I am saying. Not impossible. But improbable that congress will pass a law and backdate it.

Also thanks for correcting me on laws regarding allocation by period. I didn't know that the law was this prescriptive.

[iamdeb]

Thanks for the insight Spec! Considering the optimistic view, will there be enough spillover for EB2-I to reach year 2011 PD in coming months.

[NJMavarick]

I think I have something to add to the conversation that hasn’t been discussed to date.

The law regarding how the FB and EB allocations are computed has already been discussed.

To that, we can add the law that says a maximum of 27% of the allocation can be used in each of the first 3 quarters. Buried away in the regulations is (from memory) a maximum monthly allocation of 10%.

What hasn’t been discussed is when the official determination of the annual limits is made.

CO does his best to give an estimate as early as he can in the Annual Numerical Limits document.

This usually gets published in about November of the FY (very quick).

However, CO needs certain information from USCIS before he can make the official determination:

• the number of immediate relative adjustments in the preceding year and

• the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year.

Without this information, it is impossible to make an official determination of the annual limits since this information is needed, by law, for the calculation.

Until CO has this information (usually received from USCIS in July of the FY), the official line is that the VO bases allocations on the minimum allocations of 226,000 for FB and 140,000 for EB.

If you look in the Visa Bulletin, you will see this language until the official determination of the annual limits is published (usually in the September Visa Bulletin):

Even now, the official determination of numerical limits for FY2020 has not been published.

If you look at the September 2019 Visa Bulletin, you will see that is when the official determination of annual limits for FY2019 was published:


You can take two views as to what could happen in FY2021 if new legislation is not passed until the FY has started:

The Pessimistic View

From October 2020 there is no official determination of the numerical limits. Therefore, DOS will have to use the minimum numbers anyway.

Technically, DOS can’t allocate more than 27% of 140,000 for EB per quarter (although I think they normally do, because waiting to make figures official in July wouldn’t leave enough time to distribute any extra allocation).

If legislation is passed before July 2021, when USCIS provide DOS with the information needed to make the official determination, then the new legislation could be taken into account for FY2021.

The Optimistic View

Congress very rarely, if ever, passes legislation that is back-dated. I honestly don't see this changing.

In this case, if legislation is not passed before October 1, 2020 then the existing laws governing determination of the numerical limits for FY2021 would have to be followed.


Not that I think it’s worth anything, but my view is that if legislation that changes how the numerical allocations are calculated for FY2021 is not passed before the beginning of FY2021, then existing law will cover FY2021. In that case, the lawmakers might think about how the FB shortfall might be made up in future FY, but not to the detriment of EB.

Sorry for the long post.

As always, very informative Spec! Does it still stop CO from advancing the filing dates? I gauge that its possible that the FAD will be only advanced based on the bare minimum allocation.

[feedmyback]

I don't think it is based on USCIS' intention too to be honest. Yes, they might be inefficient and again not work properly. But the dates have to be moved and the ununsed FB GCs have to come to EB GCs in 2021. And you are right. There is no Congress intervention needed for any of this to happen. So things will start moving right away from Oct 1, 2020.

[ntn2008]

Thank you Spec for your valuable contribution to this forum. You are so informative with accurate figures of estimation, predictions for calculation. I have been following this forum, almost 10 years and this is my first post to get your valuable feedback and comments of my observation as per the below source.

https://www.prweb.com/releases/canam...eb17198291.htm

Could you please provide your valuable thoughts of your predications of Spill Over from FB to EB category. As per the below source, CO has mentioned that it is going to 60K of additional visas (from FB SO) to EB category based on the 1st travel ban until mid of June 2020. It has been approximately 30 K / Month, based on this calculation and expected SO could be from Jun 2020 to Sep 2020, around 90 K of visas. Total SO for FY 2020 could be approximately 150K + visas. Am i missing something?.

he did estimate that the total number of employment-based visas available for FY2021 “is likely to be well in excess” of 200,000, representing a minimum net gain of 60,000 visas for all employment-based preference categories.

Please advice your valuable thoughts or am i overlooking the SO estimation. Really appreciate your reply from you or other gurus in the forum.

Thank you everyone for your valuable contribution and sharing of your estimation of this topic.

Good luck to everyone.

[gs1968]

After all that I wrote earlier today-

https://www.politico.com/news/2020/0...m-floor-384633

[oraclept]

here is story from trackitt. so spillover even it comes.. it doesnt move needle.
With what I have seen in 2015 and after. I dont trust USCSIS,CO or lawyers.

Below is SpillOver(SO) math of full range what EB2-India can get. This is strictly math, however in FY2021 IF Rest of World EB2 is having less utilization, then that Horizontal SpillOver/Fall across to India and that can happen generally happens in last Quarter/Q4 of Year(July-Sep) of FY2021. Refer

IF 0k Family Based SpillOver(SO), Total EB2 will be 40,040 and EB2-India will get 2,803 [+0]
IF 10k Family Based SpillOver(SO), Total EB2 will be 42,900 and EB2-India will get 3,003 [+200]
IF 20k Family Based SpillOver(SO), Total EB2 will be 45,760 and EB2-India will get 3,203 [+400]
IF 30k Family Based SpillOver(SO), Total EB2 will be 48,620 and EB2-India will get 3,403 [+600]
IF 40k Family Based SpillOver(SO), Total EB2 will be 51,480 and EB2-India will get 3,604 [+801]
IF 50k Family Based SpillOver(SO), Total EB2 will be 54,340 and EB2-India will get 3,804 [+1,001]
IF 60k Family Based SpillOver(SO), Total EB2 will be 57,200 and EB2-India will get 4,004 [+1,201]
IF 70k Family Based SpillOver(SO), Total EB2 will be 60,060 and EB2-India will get 4,204 [+1,401]
IF 80k Family Based SpillOver(SO), Total EB2 will be 62,920 and EB2-India will get 4,404 [+1,601]
IF 90k Family Based SpillOver(SO), Total EB2 will be 65,780 and EB2-India will get 4,605 [+1,802]
IF 100k Family Based SpillOver(SO), Total EB2 will be 68,640 and EB2-India will get 4,805 [+2,002]
IF 150k Family Based SpillOver(SO), Total EB2 will be 82,940 and EB2-India will get 5,806 [+3,003]
IF 200k Family Based SpillOver(SO), Total EB2 will be 97,240 and EB2-India will get 6,807 [+4,004]
IF 226k Family Based SpillOver(SO), Total EB2 will be 104,676 and EB2-India will get 7,327 [+4,524]

[creados]

Yes, however. This is just the raw allocation of visas. With EB1 ROW current and EB1 India at August 2018, there will be internally significant spillover from ROW for EB1. With EB2ROW current, again there will be significant spillover to EB2India. Similarly with EB3ROW at April 2019 and not as much demand in EB3I. I think there will be significant movement for all of the categories.

[android09]

This was an amendment introduced by Rep Grace Meng (D-NY 6th district) to the DHS Bill

Rep. Meng – "The amendment allows unused FY20 diversity visas, employment visas, and family-based visas to remain available in FY21 in addition to what would otherwise be available for FY21, and allows any unused visas at the end of FY21 to remain available during FY22. The amendment was adopted by voice vote."

This amendment is not going to see the light of day. The house pulled the homeland security funding bill(DHS) from a vote. Its going to go for Continuing Resolution funding I think.

[redtogreen]

here is story from trackitt. so spillover even it comes.. it doesnt move needle.
With what I have seen in 2015 and after. I dont trust USCSIS,CO or lawyers.

Below is SpillOver(SO) math of full range what EB2-India can get. This is strictly math, however in FY2021 IF Rest of World EB2 is having less utilization, then that Horizontal SpillOver/Fall across to India and that can happen generally happens in last Quarter/Q4 of Year(July-Sep) of FY2021. Refer

IF 0k Family Based SpillOver(SO), Total EB2 will be 40,040 and EB2-India will get 2,803 [+0]
IF 10k Family Based SpillOver(SO), Total EB2 will be 42,900 and EB2-India will get 3,003 [+200]
IF 20k Family Based SpillOver(SO), Total EB2 will be 45,760 and EB2-India will get 3,203 [+400]
IF 30k Family Based SpillOver(SO), Total EB2 will be 48,620 and EB2-India will get 3,403 [+600]
IF 40k Family Based SpillOver(SO), Total EB2 will be 51,480 and EB2-India will get 3,604 [+801]
IF 50k Family Based SpillOver(SO), Total EB2 will be 54,340 and EB2-India will get 3,804 [+1,001]
IF 60k Family Based SpillOver(SO), Total EB2 will be 57,200 and EB2-India will get 4,004 [+1,201]
IF 70k Family Based SpillOver(SO), Total EB2 will be 60,060 and EB2-India will get 4,204 [+1,401]
IF 80k Family Based SpillOver(SO), Total EB2 will be 62,920 and EB2-India will get 4,404 [+1,601]
IF 90k Family Based SpillOver(SO), Total EB2 will be 65,780 and EB2-India will get 4,605 [+1,802]
IF 100k Family Based SpillOver(SO), Total EB2 will be 68,640 and EB2-India will get 4,805 [+2,002]
IF 150k Family Based SpillOver(SO), Total EB2 will be 82,940 and EB2-India will get 5,806 [+3,003]
IF 200k Family Based SpillOver(SO), Total EB2 will be 97,240 and EB2-India will get 6,807 [+4,004]
IF 226k Family Based SpillOver(SO), Total EB2 will be 104,676 and EB2-India will get 7,327 [+4,524]

Yes, had calculated earlier.....100k spillover is just 2000+ extra visas for EB2i for a total of around 4800+. For someone with a PD in early 2010( like me), it's a wait and watch situation until last quarter of FY21, for the horizontal SO to materialize. From what we have seen in the past, horizontal SO is a hit or miss. It didn't happen in the current FY (though many of us hoped for it) due to worldwide ROW demand according to Mr.CO. So yea, folks with 2010 PDs have to be patient and hope the wait is not stretched to a few years just by missing out by a few weeks. 2009 PDs meanwhile should be okay.

[suninphx]

The applicants for Eb2/3 ROW since March 2020 till date will be an important number to determine the spillover Eb2 /3 I gets. Google has put the WFH outlook till summer of 2021, and they would have taken that decision based on some solid analytical data. What it can imply is the new candidates may not be rushing to come into US from ROW. CP numbers again will be impacted by this.

Throwing out a number Eb2I getting a good 25-30K, Eb3I about 15K should have the potential to clear 2011 in 2021.

Ace, that’s a very bold prediction for EB2-I and I hope it comes true.

Personally, I am getting ready for all kinds of BS such as .... diminished processing power, sudden high demand from ROW etc etc. You know how it goes right?

I fully expect EB visas to be given back to FB for FY2022 so that things balance out.
Not being pessimistic, just being practical from what we have seen for many many years.

[android09]

Yes, had calculated earlier.....100k spillover is just 2000+ extra visas for EB2i for a total of around 4800+. For someone with a PD in early 2010( like me), it's a wait and watch situation until last quarter of FY21, for the horizontal SO to materialize. From what we have seen in the past, horizontal SO is a hit or miss. It didn't happen in the current FY (though many of us hoped for it) due to worldwide ROW demand according to Mr.CO. So yea, folks with 2010 PDs have to be patient and hope the wait is not stretched to a few years just by missing out by a few weeks. 2009 PDs meanwhile should be okay.

That is true if EB Row is not current. If ROW is current, then all the visas fall over to the most backlogged country. So while India's allocation may be an extra 3000 Green cards, If EB2 row is current at the time of allocation, most of the 31,000 odd should flow to the most backlogged country.

[longwaitgigu]

If trump gets reelected
Chances of EO extension increases and people with PD in 2010 and may be 2011 sure to get gc

[vsivarama]

That is true if EB Row is not current. If ROW is current, then all the visas fall over to the most backlogged country. So while India's allocation may be an extra 3000 Green cards, If EB2 row is current at the time of allocation, most of the 31,000 odd should flow to the most backlogged country.

"Current" is the word that I would NOT use to gauge the spillover to EB2-EB3 categories. Let me put this in perspective. In a hypothetical case of 100k Family Based SpillOver(SO), Total EB2 will be 68,640 and EB2-India will get 4,805. So EB2 ROW (excluding India and China) would be (68640 - 4805*2) 59030. So even if ROW has a demand for 59K visas the dates would still be current. As always the spillover calculations can only be made on the numbers used by ROW. If the numbers next year are in line with this years usage for ROW then yes, what you say would likely be correct.

[karanjohar]

Spectator,

I have a few questions,

1. When you say the additional 16,500 FB visas from last year is not showing up in the USCIS bulletin, does it mean that it is not yet allocated? Which, ergo, would mean there could be some extra visas for next month (howsoever small it could be)
2. Why wasn't the EB quota adjusted to account for the lack of FB demand this FY? If the FB quota was underallocated by 110K, then technically, this should come out to be 7% of this number or 7,700 visas for EB2 (combined). If EB2ROW is current and interviews are not happening then I can't fathom how additional ROW demand came about from thin air to consume these visas.
3. Similar to point 2 when is the EB quota re-adjusted to include the reduced FB numbers? This assumes that the president's EO continues unchallenged and no FB visas are allocated for Q1 FY 2021

I had expected much more movement for EB2I. Last four months movement has only been 44 days and corresponds to a net 800 additional visas. This number is ridiculously low given the situation we are in and the math just doesn't add up. On the other hand, I see rapid movement for EB1I and a barrage of approvals in Trackitt. I get your point about logistics and how the pandemic has affected the process. However, doesn't it be applicable to everyone, not just EB2 India?

I do not want to attribute this to conspiracy theories, but there is something fishy going on. Either the administration has given mandate to the agencies to harm EB India or there is some sort of a collusion between the agencies and immigration lawyers. Again, I do not want to believe this, but I don't see a logical explanation.

[AceMan]

Ace, that’s a very bold prediction for EB2-I and I hope it comes true.

Personally, I am getting ready for all kinds of BS such as .... diminished processing power, sudden high demand from ROW etc etc. You know how it goes right?

I fully expect EB visas to be given back to FB for FY2022 so that things balance out.
Not being pessimistic, just being practical from what we have seen for many many years.

It is just a common sense observation based on pre adjudicated cases. This is Eb2/3 predictions, but Eb1 India has to be considered here because the vertical spillover is dependent on it. If all the applicants of Wb1 till Feb 18 are greened within this FY, the demand beyond March 18 should be very limited for India there.

Remember the consulates are closed for 1st quarter of 2021 which can and should help Eb2 I next FY. I know the cynical effect over the last decade for Eb2 applicants make them suspicious, but this is happening for 2021.

[srimurthy]

It is just a common sense observation based on pre adjudicated cases. This is Eb2/3 predictions, but Eb1 India has to be considered here because the vertical spillover is dependent on it. If all the applicants of Wb1 till Feb 18 are greened within this FY, the demand beyond March 18 should be very limited for India there.

Remember the consulates are closed for 1st quarter of 2021 which can and should help Eb2 I next FY. I know the cynical effect over the last decade for Eb2 applicants make them suspicious, but this is happening for 2021.

For the Vertical Spillover from EB1, you are considering the number being available because of consulates being closed.
But I guess a lot of filings in EB1 I are AOS as they are on H1 and L1 and are already here. So I doubt there will be much vertical spill over. It can be that the dates in EB1 need to move beyond 2018 to generate further demand in that category.

[Turbulent_Dragonfly]

For the Vertical Spillover from EB1, you are considering the number being available because of consulates being closed.
But I guess a lot of filings in EB1 I are AOS as they are on H1 and L1 and are already here. So I doubt there will be much vertical spill over. It can be that the dates in EB1 need to move beyond 2018 to generate further demand in that category.

And that's exactly what they will end up doing, I think. Keep moving EB1 and more EB1Cs will keep applying and hang out EB2s to dry.