EB2 Predictions (Rather Calculations) - 2011

[nishant2200]

Teddy, Q: totally agree.

Q amazingly well said all the points are really true. Points 1 - 5 have indeed caused severe damage to EB2 I/C if even one of them were not there then the tipping point would have been broken this year. Point 1 has caused the severest damage I think if that would have been addressed earlier then the tipping point may have well come in 2009 or worst case 2010. Point 6 on the EVC is really something that they have taken very far, if corporate America is fine with that I don't understand why they are hell bent on destroying people’s lives and families quite literally. Point # 7 also harms ROW countries Mexico & Philippines continue to hog huge numbers from EB3 thereby depriving the rest of the ROW countries. Worst thing is the mixing of illegal and legal immigration via 245I this caused severe damage to EB3-I (It was shuttling in 2001 for 5 years) and even now to EB3 ROW (Hidden Demand), despite the fact that there are human issues with the undocumented this mixing is extremely unfair to all people to have followed the law in every sense.

[gcq]

Regarding following Q's points listed below.

1. USCIS wrongly interpreted spillover rules until 2007 thus starving EB23ICs.
Visa office(CO) has a leaning towards ROW. This might have clouded his judgement into overlooking AC21. This is an ongoing issue with Visa office. This is what caused 2009 EB3IC discrimination by visa office. Many times CO forgets the fact that he doesn't have any discretionary power. Only congress has it. He is an official meant to allocate visas as stipulated in the law.

2. USCIS continues to ignore quarterly spillovers which would directly benefit EB2ICs.
Not sure how VO can implement quarterly spillovers. The year isn't over until it is over. If VO spills the visa over each quarter, it will have no option of correcting it if surprise demand shows up in the last quarter.

3. After 2007 USCIS cleared all EB1 EB2ROW 485 backlog with unprecedented efficiency. This was especially true for year 2009. Thus preventing any spillover to EB2IC.
It might have happened that way. May not be intentional.

4. Then in 2010 when the 485 backlog was reduced, USCIS working with other agencies cleared off record labor backlog for EB2ROW thus preventing significant spillover to EB2IC again.

Again, this may not be intentional.

5. Coming to this year again, USCIS gave advance warning - an unprecedented step - to DoS saying they have 12K in future eligible cases. Thus preventing EB2IC benefit.

Isn't DOS and USCIS supposed to co-ordinate in the visa allocation ? I guess that is what happened here.

6. Additionally EB2I it seems is unfairly targeted for EVC kind of nonsense.

When it comes to legal immigration ( especially from India) Grassley and Obama are buddies. They forget that they are from opposing political parties. Obama's union backing plays into the hand of anti-immigrant Grassley.

7. USCIS has all along been allocating 7% across FB EB limit and allocating precious EB visas to countries like S Korea.

Visa office's categorizing of Korea, Mexico and Philippines as ROW by combining FB and EB quotas needs to be looked into. It is a worthwhile action item for us as well as ROW countries. Immigration categories were divided into FB and EB for a reason. FB and EB have their own allocations. When it comes to determining visa usage, CO cannot combine these categories.

[qesehmk]

Teddy

Could you pls explain what you said below. This will help a lot of people who don't know about it.

Point # 7 also harms ROW countries Mexico & Philippines continue to hog huge numbers from EB3 thereby depriving the rest of the ROW countries. Worst thing is the mixing of illegal and legal immigration via 245I this caused severe damage to EB3-I (It was shuttling in 2001 for 5 years) and even now to EB3 ROW (Hidden Demand), despite the fact that there are human issues with the undocumented this mixing is extremely unfair to all people to have followed the law in every sense.

gcq, i think we agree on most points and others do not have material differences except teh quarterly spillover. Qly spillover if someone wants to do are really simple. Just allcoate extra visas to backlog reduction. And then if EB2ROW or EB1 demand increases .... too bad ... they will have to wait 6 months or so. EB23ICs will ecstatic if their wait times are only a couple of years. Nothing wrong in allocating extra visas on a quarterly basis. It reduces the pain of EB2ICs and possibly even EB3ICs.

Regarding following Q's points listed below.

2. USCIS continues to ignore quarterly spillovers which would directly benefit EB2ICs.
Not sure how VO can implement quarterly spillovers. The year isn't over until it is over. If VO spills the visa over each quarter, it will have no option of correcting it if surprise demand shows up in the last quarter.

[gcq]

Q,
Quarterly spillover may bring relief to EB-IC, but won't it be against the law to allocate spillover visas through spillover when demand exists for ROW ( EB2 & 1 ) in the same year ?

[qesehmk]

No because the law allows it.
The same law that allows spillover at the end of the year, says that such spillover should be done quarterly.

Q,
Quarterly spillover may bring relief to EB-IC, but won't it be against the law to allocate spillover visas through spillover when demand exists for ROW ( EB2 & 1 ) in the same year ?

[gcq]

No because the law allows it.
The same law that allows spillover at the end of the year, says that such spillover should be done quarterly.

By definition spillover is "excess visas" . In this case (as it happened this year) there were less or no spillover visas. When spillover visas itself is absent, how can VO spill it over.

The real problem is that demand could pop up in the last quarter. Lawmakers who wrote the law didn't take this situation into consideration. For them excess visas are there or not there. If additional visas are available, spill it over quarterly. If not, don't spill it over. However reality is somewhere in between these two .

[qesehmk]

By Jun 2011 88K were used. That's about 29K per quarter. Every quarter there are about 27% (of 140K) avlbl i.e. 38K. So 9K were available for each of first 3 quarters to reduce backlog. This is incremental to any EB2IC quota which lets say was used for any portings and PWMBs etc. So 9K per quarter could've easily be given to EB2IC. But it was not. That's the point I tried to make earlier.

By definition spillover is "excess visas" . In this case (as it happened this year) there were less or no spillover visas. When spillover visas itself is absent, how can VO spill it over.

The real problem is that demand could pop up in the last quarter. Lawmakers who wrote the law didn't take this situation into consideration. For them excess visas are there or not there. If additional visas are available, spill it over quarterly. If not, don't spill it over. However reality is somewhere in between these two .

[donvar]

For following reasons and observed facts:

1. USCIS wrongly interpreted spillover rules until 2007 thus starving EB23ICs.
2. USCIS continues to ignore quarterly spillovers which would directly benefit EB2ICs. 3. After 2007 USCIS cleared all EB1 EB2ROW 485 backlog with unprecedented efficiency. This was especially true for year 2009. Thus preventing any spillover to EB2IC.
4. Then in 2010 when the 485 backlog was reduced, USCIS working with other agencies cleared off record labor backlog for EB2ROW thus preventing significant spillover to EB2IC again.
5. Coming to this year again, USCIS gave advance warning - an unprecedented step - to DoS saying they have 12K in future eligible cases. Thus preventing EB2IC benefit.
6. Additionally EB2I it seems is unfairly targeted for EVC kind of nonsense.
7. USCIS has all along been allocating 7% across FB EB limit and allocating precious EB visas to countries like S Korea.

In all these cases, there is clear bias against IC utilizing more visas. Granted both countries do utilize a lot of visas but then those two countries have a third of world's population between them. So is it a big deal if they consume a lot of visas? But somehow USCIS and DoS it seems favor nationality diversity. I also have thoughts on why ..... but hey I will leave that for people to figure out.

Out of all of these point, Can USCIS can be questioned on ignoring the 2nd point? Or do they some other clause to justify that?

[GCDespo]

Out of all of these point, Can USCIS can be questioned on ignoring the 2nd point? Or do they some other clause to justify that?

Can we sue them on Point 1 since they clearly admitted that they intrepreted the law wrongly and demand that we we should get higher allocation of the visa numbers for EB2IC-From EB2 ROW,until they make up for all the lost visas to EB3 ROW over the years?

[qesehmk]

This is absolutely possible and must be done. I would suggest those interested form a group on this website and move it forward. Personally I can't devote more time than bringing clarity to GC process.

p.s. - If I were to do it, I would have highlighted this as a way to reduce pain for lots of EB2ICs with the tradeoff that some ROWand EB1 would see increase in wait times upto 6 months. The reason this would be more effective is because VO would otherwise argue that law allows him to do quarterly spillover - not that it is required by law to do Qly spillover.

Out of all of these point, Can USCIS can be questioned on ignoring the 2nd point? Or do they some other clause to justify that?

This one I am not sure and I am less bullish on this one compared to the Qly spillover. But again ... it wouldn't hurt for people to do form a group and try to do something.

p.s. On second thought, very few if any affected parties are now left behind. The only people who could sue USCIS over this are the ones whose dates are prior to 2007. Right?

Can we sue them on Point 1 since they clearly admitted that they intrepreted the law wrongly and demand that we we should get higher allocation of the visa numbers for EB2IC-From EB2 ROW,until they make up for all the lost visas to EB3 ROW over the years?

[familyguy]

Out of all of these point, Can USCIS can be questioned on ignoring the 2nd point? Or do they some other clause to justify that?

DOS/USCIS is NOT obligated to allocate visas on quarterly basis...

Excerpt from May bulletin:
INA Section 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an Employment preference, then the unused numbers may be made available without regard to the annual per-country limits

You see that 'may be'?

For more info read:
http://www.travel.state.gov/visa/bul...etin_5424.html

[gcq]

INA 202(a) 5

(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.

For this clause to to take effect, "Total number" of visas available for ( EB1+ EB2 + EB3 + EB4 + EB5 ) should exceed the total demand for EB1 through EB5. This is not the case here.

[qblogfan]

nishant, you are so funny!

Your words are very interesting. I also want to travel freely, but I don't want to lay down on a cloud and float because I am too heavy.

many times I have dreamt of this day, and always I visualize myself lying down on a cloud and floating peacefully.

[TeddyKoochu]

Teddy

Could you pls explain what you said below. This will help a lot of people who don't know about it.

Friends 2 things here. Firstly most of us are aware that South Korea consistently gets more that 2.8K in EB2 because of the definition of retrogressed county being at EB + FB level. For Mexico and Philippines since these countries are classified as retrogressed at EB + FB level their EB utilization is limited to 7% of 140K for EB. Now since these countries do not utilize 2.8K each in EB1 and EB2 in EB3 they are allowed to make up for the deficit. Both these countries have been pulling up 7-8K in EB3 consistently over the last few years. So this is a classic case of the 7% rule hitting the countries that were supposed to benefit by it.
245I is the amnesty for those present illegally before Apr 30 2001. Anyone who could prove that he / she was present before this time illegally (Not Legally) and is not involved in any criminal activity could be eligible for AOS. You can imagine that this demand could be potentially never ending, EB3 - I took 5 years to come out of 2001 and for a major part the PD was magnetically stuck to April 2001. Even now looking at the inventory there is demand from Apr 2001. Additionally Iam not sure if someone claimed that they were in US illegally after Apr 2001 what PD would they have. For EB3 ROW there is a lot of hidden demand at local offices and CP I believe a major part of this could be thanks to 245I people in some cases having later PD's but claiming benefit of that statute. Most of us have nothing against undocumented folks we all understand the American Dream and good quality of life here, however this is a very stark contracts we are being subjected to trial by fire at each and every stage after religiously and rigorously following the law while those who broke the law are being rewarded openly for breaking it, worst thing is that atleast the cap numbers for this should have been separate from the quota that legal people have unfortunately it was mixed up with EB3, so you can imagine how unfair this is and insult to injury.

[qesehmk]

A great great post Teddy!

For those who may ask why are these people being counted against EB category, the answer is of all the illegal population, there will always be a few who get the college education and then get a job and try to become legal through 245 route. So while not all illegal population will come through EB3, since the population itself is in millions, it is perfectly possible that a few thousand become eligible every year to utilize 245I.

Friends 2 things here. Firstly most of us are aware that South Korea consistently gets more that 2.8K in EB2 because of the definition of retrogressed county being at EB + FB level. For Mexico and Philippines since these countries are classified as retrogressed at EB + FB level their EB utilization is limited to 7% of 140K for EB. Now since these countries do not utilize 2.8K each in EB1 and EB2 in EB3 they are allowed to make up for the deficit. Both these countries have been pulling up 7-8K in EB3 consistently over the last few years. So this is a classic case of the 7% rule hitting the countries that were supposed to benefit by it.
245I is the amnesty for those present illegally before Apr 30 2001. Anyone who could prove that he / she was present before this time illegally (Not Legally) and is not involved in any criminal activity could be eligible for AOS. You can imagine that this demand could be potentially never ending, EB3 - I took 5 years to come out of 2001 and for a major part the PD was magnetically stuck to April 2001. Even now looking at the inventory there is demand from Apr 2001. Additionally Iam not sure if someone claimed that they were in US illegally after Apr 2001 what PD would they have. For EB3 ROW there is a lot of hidden demand at local offices and CP I believe a major part of this could be thanks to 245I people in some cases having later PD's but claiming benefit of that statute. Most of us have nothing against undocumented folks we all understand the American Dream and good quality of life here, however this is a very stark contracts we are being subjected to trial by fire at each and every stage after religiously and rigorously following the law while those who broke the law are being rewarded openly for breaking it, worst thing is that atleast the cap numbers for this should have been separate from the quota that legal people have unfortunately it was mixed up with EB3, so you can imagine how unfair this is and insult to injury.

[qblogfan]

I think quarter spillover is more humane to the EB immigrants. He did quarter spillover for FB immigrants, but not EB.

Currently EB2 C&I have to wait for the summer time to get GC. If somebody misses the summer, he/she has to wait for 1 extra year! It is not humane!

For example, an Indian EB2 has PD 5/10/2006 and he/she missed the summer of 2010. He/she had to wait for almost 1 year to get his GC because the PD for EB2I stayed on 5/8/2006 for almost 1 year!

It is inhumane! I think quarter spillover is better. It's not too conservative, but it's not too aggressive either! It is a good balance.

Now Mr.CO interprets all the laws based on his own understanding. He does not know what he is doing is causing so much pain to EB C&I.

DOS/USCIS is NOT obligated to allocate visas on quarterly basis...

Excerpt from May bulletin:
INA Section 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an Employment preference, then the unused numbers may be made available without regard to the annual per-country limits

You see that 'may be'?

For more info read:
http://www.travel.state.gov/visa/bul...etin_5424.html

[qblogfan]

agree with T completely.

I think the immigration system is not fair to the hard working legal EB immigrants. My friends told me that the 245I caused significant delay on labor processing in the first several years of 21st century. My friend had to wait for many years to get labor approved.

The problem is that the government and the officials don't understand the pain we are suffering. They don't understand our situation and nothing has changed. Many people have waitied for many years. This endless waiting is killing all the creativity and motivation of these EB workers. I don't believe people can focus on work during this GC waiting process. For me, I spend more time on Q's forum and mitbbs than work.

Friends 2 things here. Firstly most of us are aware that South Korea consistently gets more that 2.8K in EB2 because of the definition of retrogressed county being at EB + FB level. For Mexico and Philippines since these countries are classified as retrogressed at EB + FB level their EB utilization is limited to 7% of 140K for EB. Now since these countries do not utilize 2.8K each in EB1 and EB2 in EB3 they are allowed to make up for the deficit. Both these countries have been pulling up 7-8K in EB3 consistently over the last few years. So this is a classic case of the 7% rule hitting the countries that were supposed to benefit by it.
245I is the amnesty for those present illegally before Apr 30 2001. Anyone who could prove that he / she was present before this time illegally (Not Legally) and is not involved in any criminal activity could be eligible for AOS. You can imagine that this demand could be potentially never ending, EB3 - I took 5 years to come out of 2001 and for a major part the PD was magnetically stuck to April 2001. Even now looking at the inventory there is demand from Apr 2001. Additionally Iam not sure if someone claimed that they were in US illegally after Apr 2001 what PD would they have. For EB3 ROW there is a lot of hidden demand at local offices and CP I believe a major part of this could be thanks to 245I people in some cases having later PD's but claiming benefit of that statute. Most of us have nothing against undocumented folks we all understand the American Dream and good quality of life here, however this is a very stark contracts we are being subjected to trial by fire at each and every stage after religiously and rigorously following the law while those who broke the law are being rewarded openly for breaking it, worst thing is that atleast the cap numbers for this should have been separate from the quota that legal people have unfortunately it was mixed up with EB3, so you can imagine how unfair this is and insult to injury.

[qesehmk]

This endless waiting is killing all the creativity and motivation of these EB workers. I don't believe people can focus on work during this GC waiting process. For me, I spend more time on Q's forum and mitbbs than work.

This is so true. I think we have some good people here who have enterprenuerial ambition. Time permitting I intend to start a sub-forum devoted solely to those who have creative minds and feel restricted by this GC nonsense and held back in their careers by crooked managers at work.

[GCDespo]

This is absolutely possible and must be done. I would suggest those interested form a group on this website and move it forward. Personally I can't devote more time than bringing clarity to GC process.

p.s. - If I were to do it, I would have highlighted this as a way to reduce pain for lots of EB2ICs with the tradeoff that some ROWand EB1 would see increase in wait times upto 6 months. The reason this would be more effective is because VO would otherwise argue that law allows him to do quarterly spillover - not that it is required by law to do Qly spillover.




This one I am not sure and I am less bullish on this one compared to the Qly spillover. But again ... it wouldn't hurt for people to do form a group and try to do something.

p.s. On second thought, very few if any affected parties are now left behind. The only people who could sue USCIS over this are the ones whose dates are prior to 2007. Right?

The people after 2007 are also effected because of this , If the law was in effective long ago EB2IC would have been current as of now.Or the sitiuation would have been better because all the people would have been out of the queue much earlier

[qesehmk]

I agree. I realized that even as I was typing my earlier post. But was too lazy to type in the caveat. Thanks!

The people after 2007 are also effected because of this , If the law was in effective long ago EB2IC would have been current as of now.Or the sitiuation would have been better because all the people would have been out of the queue much earlier

[qblogfan]

I agree with you 100%.

One big mistake Mr.Co made was: in 10/1/2005, he created retrogression on EB2 C&I. This was not supposed to happen! He allocated all the spillover visas to EB3from 2005-2007, at the same time controlled EB2 C&I very tightly. He didn't understand the immigration law at all! He mis-interpretted the law and created this EB2 C&I backlog mannully. We were not supposed to have any backlog at all! Until today I really doubt he understands the law.

This mistake alone damaged thousands of Chinese and Indian families! Nobody understands the pain caused by this guy's mistake. He is not paying anything for his mistake and he is eating and sleeping well, but thousands of Chinese and Indian families are paying a heavy price for it!

For following reasons and observed facts:

1. USCIS wrongly interpreted spillover rules until 2007 thus starving EB23ICs.
2. USCIS continues to ignore quarterly spillovers which would directly benefit EB2ICs.
3. After 2007 USCIS cleared all EB1 EB2ROW 485 backlog with unprecedented efficiency. This was especially true for year 2009. Thus preventing any spillover to EB2IC.
4. Then in 2010 when the 485 backlog was reduced, USCIS working with other agencies cleared off record labor backlog for EB2ROW thus preventing significant spillover to EB2IC again.
5. Coming to this year again, USCIS gave advance warning - an unprecedented step - to DoS saying they have 12K in future eligible cases. Thus preventing EB2IC benefit.
6. Additionally EB2I it seems is unfairly targeted for EVC kind of nonsense.
7. USCIS has all along been allocating 7% across FB EB limit and allocating precious EB visas to countries like S Korea.

In all these cases, there is clear bias against IC utilizing more visas. Granted both countries do utilize a lot of visas but then those two countries have a third of world's population between them. So is it a big deal if they consume a lot of visas? But somehow USCIS and DoS it seems favor nationality diversity. I also have thoughts on why ..... but hey I will leave that for people to figure out.

[qblogfan]

Agree completely.

We should push for this quarter spillover.

Mr.Co already messed up too many things and this is the last thing we can fight for.

Some friends and I are doing a campain to push for quarter spillover. It will benefit both EB2C and EB2I.

This is absolutely possible and must be done. I would suggest those interested form a group on this website and move it forward. Personally I can't devote more time than bringing clarity to GC process.

p.s. - If I were to do it, I would have highlighted this as a way to reduce pain for lots of EB2ICs with the tradeoff that some ROWand EB1 would see increase in wait times upto 6 months. The reason this would be more effective is because VO would otherwise argue that law allows him to do quarterly spillover - not that it is required by law to do Qly spillover.




This one I am not sure and I am less bullish on this one compared to the Qly spillover. But again ... it wouldn't hurt for people to do form a group and try to do something.

p.s. On second thought, very few if any affected parties are now left behind. The only people who could sue USCIS over this are the ones whose dates are prior to 2007. Right?

[qblogfan]

Comparision of EB and FB visa consumption:

Employment Based:

Q1: total visa usage 24,040, only 17% of annual quota.
Q2: total visa usage 21,944, only 15% of annual quota.
Q3: total visa usage 36,128, only 25% of annual quota.

Family Based:

Q1: total visa usage 62,955, 27.9% of annual quota
Q2: total visa usage 69,730, 30.9% of annual quota
Q3: total visa usage 67,480, 29.9% of annual quota

A quarter spillover will make our life much easier! What Mr.Co is doing is over conservative! Quarter spillover is not conservative, but not too aggressive either!

Currently we are waiting for summer after summer. It is not humane and it causes significant panic!

By Jun 2011 88K were used. That's about 29K per quarter. Every quarter there are about 27% (of 140K) avlbl i.e. 38K. So 9K were available for each of first 3 quarters to reduce backlog. This is incremental to any EB2IC quota which lets say was used for any portings and PWMBs etc. So 9K per quarter could've easily be given to EB2IC. But it was not. That's the point I tried to make earlier.

[qesehmk]

Just in case some body is wondering ... these figures given are NOT cumulative.

They prove beyond doubt that somebody made a decision to NOT do a spillover even when the law does "allow it" at the least and "asks it" at the best.

Comparision of EB and FB visa consumption:

Employment Based:

Q1: total visa usage 24,040, only 17% of annual quota.
Q2: total visa usage 21,944, only 15% of annual quota.
Q3: total visa usage 36,128, only 25% of annual quota.

Family Based:

Q1: total visa usage 62,955, 27.9% of annual quota
Q2: total visa usage 69,730, 30.9% of annual quota
Q3: total visa usage 67,480, 29.9% of annual quota

A quarter spillover will make our life much easier! What Mr.Co is doing is over conservative! Quarter spillover is not conservative, but not too aggressive either!

Currently we are waiting for summer after summer. It is not humane and it causes significant panic!

[10102007]

Q and other Gurus,

Would it help if we make an appointment with the CIS Ombudsman regarding this issue?