Spillovers Fall Across and Fall Down - How it Works

[Pedro Gonzales]

Pedro,

That is not correct as I read the law.

Countries that have reached the 7% limit may not use spillover visas until all demand from Countries that have not reached their individual 7% limit has been satisfied.

If EB2-WW need more than 34.4k and spillover is available, then that demand will be met first. Only then does spillover go to the earliest PD for Countries who have already reached their 7% limit of 2.8k (in practice only EB2-I in FY2013).

It has been discussed extensively previously.

The kicker (as you put it) is that, in a nuclear scenario, EB2-I might only be left with the initial allocation of 2.8k if EB2-WW demand is equal to or exceeds 34.4k + spillover available. By the way, I don't believe that will happen.

I'd forgotten about the difference in opinion on the subject of spillovers. There were two great spillover debates in 2010/2011 from my memory. One referred to whether the spillover ought to go to EB2IC or EB3ROW, but that argument was decided based on how the USCIS has been allocating the spillover. The other debate, if I remember right, was the theoretical argument on whether further FD to EB3 (if EB2IC ever became current) would go to EB3I first or EB3ROW. Your read of the law, I guess, was that EB3ROW would receive it first based on the argument above. My stance was that it would go to EB3I (I'll need to dig into my old posts to find my arguments, if they were ever enumerated). Remind me though, was there ever a consensus or majority opinion reached on the subject?

[Spectator]

I'd forgotten about the difference in opinion on the subject of spillovers. There were two great spillover debates in 2010/2011 from my memory. One referred to whether the spillover ought to go to EB2IC or EB3ROW, but that argument was decided based on how the USCIS has been allocating the spillover. The other debate, if I remember right, was the theoretical argument on whether further FD to EB3 (if EB2IC ever became current) would go to EB3I first or EB3ROW. Your read of the law, I guess, was that EB3ROW would receive it first based on the argument above. My stance was that it would go to EB3I (I'll need to dig into my old posts to find my arguments, if they were ever enumerated). Remind me though, was there ever a consensus or majority opinion reached on the subject?

Pedro,

It boils down to the interpretation of the following:

The provision introduced in the AC21 Act (INA 202(a)(5)(A) says :

(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.

In particular:

exceeds the number of qualified immigrants who may otherwise be issued such visas

I would contend that Countries who have not yet reached their 7% limit are qualified immigrants who may otherwise be issued such visas.

Until a Country reaches its 7% limit, it is qualified to receive a visa number.

Only when that demand has been satisfied does:

the visas made available under that paragraph shall be issued without regard to the numerical limitation

become applicable.

I have no idea if there is a consensus or not, but the wording isn't that ambiguous in my mind.

[GhostWriter]

Spec, it does seem quite ambiguous (to me). Firstly applying it quarterly does not make much sense since the limits on category and country are annual. Applying it quarterly will result in erratic results under different scenarios since the demand in next quarter can be very different from this quarter.

If we think about annual spillover then the correct interpretation would seem to be what Pedro is thinking and what the header says (EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE). For simplicity let us say there are only two countries in EB2 - A and B. Both of them have more demand than their EB2 allocation. There is no tie-breaker in that case and i think that is what the rule is also implying.

"qualified immigrants who may otherwise be issued such visas" could refer to cases that are pre-adjudicated (i.e. rest all is in place). So spillover will be allocated by PD to qualified (pre-adjudicated) cases in order of PD irrespective of country limit. (Logically that would make sense because both the countries are over their EB2-limit so allocation of extra visas in this category should not depend on who has more demand in FB category, but i am not using this judgement as an argument).

Even if your interpretation is correct i would say it is as ambiguous as anything written by a lawyer (this is unambiguous ).

Pedro,

It boils down to the interpretation of the following:
"The provision introduced in the AC21 Act (INA 202(a)(5)(A) says :

(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."

In particular:


I would contend that Countries who have not yet reached their 7% limit are qualified immigrants who may otherwise be issued such visas.
Until a Country reaches its 7% limit, it is qualified to receive a visa number.

Only when that demand has been satisfied does:
become applicable.

I have no idea if there is a consensus or not, but the wording isn't that ambiguous in my mind.

[Spectator]

Spec, it does seem quite ambiguous (to me). Firstly applying it quarterly does not make much sense since the limits on category and country are annual. Applying it quarterly will result in erratic results under different scenarios since the demand in next quarter can be very different from this quarter.

I agree that applying it quarterly might lead to unpredictable results. FY2012 is proof of that.

If we think about annual spillover then the correct interpretation would seem to be what Pedro is thinking and what the header says (EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE). For simplicity let us say there are only two countries in EB2 - A and B. Both of them have more demand than their EB2 allocation. There is no tie-breaker in that case and i think that is what the rule is also implying.

"qualified immigrants who may otherwise be issued such visas" could refer to cases that are pre-adjudicated (i.e. rest all is in place). So spillover will be allocated by PD to qualified (pre-adjudicated) cases in order of PD irrespective of country limit. (Logically that would make sense because both the countries are over their EB2-limit so allocation of extra visas in this category should not depend on who has more demand in FB category, but i am not using this judgement as an argument).

Even if your interpretation is correct i would say it is as ambiguous as anything written by a lawyer (this is unambiguous ).

You need to understand the context it is referring to. It can only apply once a Country as actually reached the 7% limit and not in anticipation of it.

The

numerical limitation under paragraph (2)

refers to

(2) Per country levels for family-sponsored and employment-based immigrants. - Subject to paragraphs (3), (4), and (5) the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.

the "7% limit" and this is an exception to that limit.

Until either demand from otherwise qualified immigrants has run out, or all Countries reach the 7% limit, there is no basis for any Country that has reached the 7% limit to receive any more visas in the quarter, even if they have an earlier PD.

As a practical matter, only no further demand will satisfy the condition. In other words, EB2-WW needs to be Current and all approvable cases need to have received approval.

Until then, paragraph (2) forbids a Country exceeding the 7% limit.

It only looks like the spillover goes to the oldest PD first because EB2-WW has always been Current.


This was probably best explained in the May 2011 VB.

Allocation of “otherwise unused” numbers in accordance with Immigration and Nationality Act (INA) Section 202(a)(5)

I recommend reading the whole section, part of which states:

The rate of number use under Section 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. This helps assure that all available Employment preference numbers will be used, while insuring that numbers also remain available for applicants from all other countries that have not yet reached their per-country limit.

That is the end of my participation in the discussion. I don't want to revive old arguments.

[qesehmk]

Spec I think we had a quite a difference of opinion here. I always read that as 7% within category. So the moment fa or fd comes into picture it is not subject to 7% limitation.

On another note I count 485. For eb2 at 60% and 2.1 ratio to perm. Do not count rejections to make it conservative from prediction perspective .....but from visa usage perspective that is turning out aggressive isn't it?

Pedro,

It boils down to the interpretation of the following:



In particular:


I would contend that Countries who have not yet reached their 7% limit are qualified immigrants who may otherwise be issued such visas.

Until a Country reaches its 7% limit, it is qualified to receive a visa number.

Only when that demand has been satisfied does:



become applicable.

I have no idea if there is a consensus or not, but the wording isn't that ambiguous in my mind.

[Kanmani]

Spec I think we had a quite a difference of opinion here. I always read that as 7% within category. So the moment fa or fd comes into picture it is not subject to 7% limitation.

Q,

We have already discussed in this context and agreed to agree that the legal phrase in the INA doesn't reflect the true description of 7% limitation on per country limits and also agreed that DoS/USCIS 's calculation of 7% is their own interpretation .

Whether we agree or not DOS has set 7% from EB+FB.

Quote from September 2012 Visa bulletin as follows,

"The fiscal year 2012 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality Act (INA) is 226,000. The fiscal year 2012 limit for employment-based preference immigrants calculated under INA 201 is 144,951. 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., 25,967 for FY-2012. The dependent area limit is set at 2%, or 7,419. "

[qesehmk]

Kanmani - I may be wrong. But this is a different discussion than "Whether 7% is FB+EB"?

this is a question that says "Should FA and FD be allocated to ROW until they satisfy their 7%". I think the law doesn't require that. Spec thinks it does.

p.s. - I remember that we had quite a debate on the first one and we agreed to disagree - you thought DOS is completely within its bounds in apply 7% across EB+FB and I thought they were overreaching and creating convinient explanation to starve EBIC (just as they conveniently interpreted spillovers in the old days!)

pps - BTW we missed you. Where were you?

Q,

We have already discussed in this context and agreed to agree that the legal phrase in the INA doesn't reflect the true description of 7% limitation on per country limits and also agreed that DoS/USCIS 's calculation of 7% is their own interpretation .

Whether we agree or not DOS has set 7% from EB+FB.

Quote from September 2012 Visa bulletin as follows,

"The fiscal year 2012 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality Act (INA) is 226,000. The fiscal year 2012 limit for employment-based preference immigrants calculated under INA 201 is 144,951. 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., 25,967 for FY-2012. The dependent area limit is set at 2%, or 7,419. "

[Pedro Gonzales]

After going through the INA in detail, I read the document differently from Spec, but I arrive at the same exact conclusion.

Based purely on 202(a)(5)(A), I agree that India and China are not relieved of the 7% limit until WW becomes current. As a small consolation to EB2IC, this interpretation would mean that the 7% limit applies to the 40,040 + SO (as that is what the total visas available under 203(b)(2) refers to).

However, there is also the extremely confusing 202(a)(5)(B) which reads:

"LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (e)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section 203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b)consistent with subsection (e) (determined without regard to this paragraph),in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens specified in section 203(b). "

This red portion indicates that for the purposes of determining the 7% of EB2 visa availability, the spill over ought not to be considered. So, that gets me back to EB2I and EB2C each having only 7% of the 40,040 available for usage (plus proportional visa allocation from FB if any) until EB2ROW becomes current.

Basically, bad news all around, if you're EB2I or C.

[Pedro Gonzales]

Btw, does it make sense to create a thread to move this spill over related discussion? And any past ones that are relevant too.

Also, i'm going to post another message here with my summary of the INA's relevant sections (201, 202 & 203). I had created this a while ago when debating this topic on Trackitt, before I moved here, but I updated it just now when I was looking at it. May be meaningful for those who don't want to spend the time reading 3 large documents. Where's the best place to move that message to?

[Pedro Gonzales]

Synopsis of the relevant Sections of the INA

Section 201: Absolute number of green cards issued.

1) Immediate Family Members: Children (under 21), spouses and parents of citizens of the US (as long as the US citizen is at least 21 years old) are not subject to any numerical limitations (but are considered part of the next year’s FB quota for the calculation in 2 below).
2) Minimum of 226,000 and maximum of 480,000 family based visa numbers given each year subject to the number of immediate family member visa numbers issued in the previous year (so, if immediate family visa numbers issued in previous year is 0, then the FB quota is 480,000; if it is 254,000 or higher, the FB quota is 226,000; anything in between 0 and 254,000 is interpolated).
3) 140,000 EB visa numbers issued each year.
4) 55,000 diversity visa numbers issued each year.
5) Any unused FB visa numbers from a particular year is added to the EB quota for the next year and vice versa (so they can be higher than 140,000 and 480,000 respectively).
6) Max of 27% of total EB or FB visa numbers granted each year can be given in the first 3 quarters of each year (so a max of 27% x 3 = 81% before Q4).

Section 203: FB & EB Categories

a) Categories within FB
1) FB1: Unmarried sons or daughters (over 21) of citizens – 23,400 + any not used in other categories
2) FB2A: Spouses & children (under 21) of permanent residents - 77% of 114,200 to 368,200 (depending on FB visa numbers available based on Section 201 item 2) + 77% of FB1 spillover
3) FB2B: Unmarried sons and daughters (over 21) of permanent residents - 23% of 114,200 to 368,200 (depending on FB visa numbers available based on Section 201 item 2) + 23% of FB1 spillover
4) FB3: Married sons and daughters of citizens – 23,400 + FB1 & FB2 spillover
5) FB4: Brothers and sisters of citizens (only for citizens over 21 years of age) – 65,000 + FB1, FB2 & FB3 spill over

b) Categories within EB
1) EB1: 28.6% of total + EB4 & EB5 spillover;
EB1 includes 3 categories, (EB1A – extraordinary ability; EB1B – outstanding professor and researcher & EB1C – Multinational executive and manager) all to share the visas based on PD (i.e., no defined quotas between the categories)
2) EB2 (professionals with advanced degrees and exceptional ability): 28.6% of total + EB1, EB4 & EB5 spillover
3) EB3 (workers and other professionals): 28.6% of total + EB1, EB2 EB4 & EB5 spillover;
EB3 includes 3 subcategories (Skilled Workers, Professionals and Other Workers; Other Workers may not use more than 10,000 of the EB3 quota)
4) EB4 (special immigrants): 7.1% of total
5) EB5 (employment creation): 7.1% of total with 3,000 set aside for rural high unemployment areas;
EB5 requires an investment of between $500K and $3,000,000 depending on the unemployment rate of the target area, and the business should have at least 10 full time employees.
6) EB2 National Interest Waiver (NIW) application details are also specified
7) US military service men who are foreign nationals may receive their green cards (under a different category of the INA) and such numbers decrease the number of visa numbers available for EB1, EB2 and EB3 proportionally (also attributed to those specific countries for purposes of the country caps)

Section 202:

1) Foreign born children can be charged to the country of chargeability of either parent; and spouses can be charged to the country of chargeability of their spouse if required.
2) 75% of visa numbers for FB2A are allocated without considering country caps; visa numbers from the remaining 25% can be allocated to countries only if they haven’t already hit the cap, and only to the extent of the cap.
3) The total number of EB & FB visas issued to any country (excluding any excess from 75% of the FB2A visas described above), shall be limited to 7% of the total EB & FB visas issued
4) If the 75% figure above exceeds 7% of the total FB2A + FB2B limits, then FB2B for this country will be 0, and spill over (if any) from FB1 and FB2 will be assumed as 0 for calculating FB3 or FB4 allocations (for those countries only).
5) If applicants from a country exceed the 7% limit for that country (FB + EB together), then the 7% limit applies to each of EB & FB (in proportion to the totals). However, the Act is clear that to the extent the FB quota is not met, the country can exceed the 7% EB limit (so that the 7% limitation applies to the entire EB + FB demand) and vice versa. This is exactly what happens to South Korea which exceeds the 7% limit for EB, but falls far short in FB, hence they receive their EB3 visa numbers until other limits get hit.
6) Within each of FB and EB, visas numbers are allocated at 7% of the total for the section (ignoring any excess allocation from FB2A), and within each category, the split is proportional to the split of the various categories.
7) Towards the end of a quarter, if there are excess visas available for the aggregate of all EB categories, then country limits do not apply for the remainder of that quarter (Likely what happened in FY2012).
8) Also, for quarterly allocation within a category, a retrogressed country can only be allocated 7% of the original allocation for that category, and not 7% of any spillover coming to it (unless all non-retrogressed countries in that category are current).

How this relates to the quarterly/annual allocations for EB2IC:

1) First, determine # of immediate family member, total FB and total EB visa numbers issued in the previous year. Based on this, determine total number of FB and EB visas to be issued this year. This also determines FB2A and FB2B limits (pre spillover).Under current scenario, this usually means FB is at 226,000 FB2A at 114,200 and EB at 140,000.
2) For each quarter, for EB, issue visa numbers in the following order (EB4, EB5, EB1, EB2, EB3).
3) If any country reaches its limits, apply the 7% limits (but only if both EB and FB limits are reached; else, over allocate to those countries until the total limit for the quarter is reached – max of 27% of total for the quarter) – Under current scenario, with long backlogs in FB, M, P, C & I all likely hit the 7% limitation every quarter but South Korea does not.
4) The retrogressed countries receive 7% of all EB visa numbers, further split according to the original 28.6%, 28.6%, 28.6%, 7.1%, 7.1% split amongst the various EB categories. In addition, any sill over will be available based on PDs if all non-retrogresssed countries within its category are current.
5) So, in each quarter EB4, EB5 spillover falls down to EB1, and then potentially to EB2. Within EB2, with the current EB2WW backlog, no FA will happen and no allocation of any spill over will happen. If / once EB2ROW becomes current, EB2 I & C will get all SOFAD. Not until EB2 becomes current does the spill over go to EB3 (and at that point, it will go first to EB3ROW until EB3ROW becomes current before it hits EB3I or C).

[Spectator]

[B]Synopsis of the relevant Sections of the INA

Pedro,

Excellent. That's a good fairly plain English summary.

Some other items you might be interested in. I haven't looked up the relevant law.

Source VB:

(All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

Source VB:

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

Source http://www.travel.state.gov/pdf/Web_...cal_Limits.pdf

*The provisions of the Chinese Student Protection Act require that the China annual limit be
reduced by 1,000. A total of 300 numbers are deducted from the E3 category, and 700 from the
E5 category.

I think it should eventually move to the FACTS & DATA section for easy reference.

[justvisiting]

My two cents:

"LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (e)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section 203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b)consistent with subsection (e) (determined without regard to this paragraph),in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens specified in section 203(b). "

I red the part in red to mean that EB takes precedence over FB. That is what DOS calls "fall across". Basically, FB cannot take visas from EB for countries that have hit 7%. This works in concert with the provisions giving FB extra visas if EB does not use the 140K. They are basically dead law, because FB gets 226K no matter what.

[Pedro Gonzales]

JV,

I read that differently. I don't understand how they define Fall Across, but I think, in this context, it is what we call Fall Down.

As you know, subsection (e) of 202 is where they talk about what happens if a country hits the 7% limit. So, with that in mind, my translation of that paragraph is as follows:
" In the case of India or China (and Mexico and the Philippines), if the total number of EB visas issued exceeds 2,803 (only possible because of over allotment in certain categories, EB4 or EB5 possibly, but more likely EB1 and EB2 in years when EB2ROW is current), when you apply the limitation, no spill over availability is to be assumed (the red portion) when calculating how many visa numbers the retrogressed countries can be given in each category."

The 'deemed to have been required' portion bothered me. I couldn't figure out at first what they meant by it, but then when I cross-referenced Section 203(b), the only context it comes in is to explain the Fall Down from EB4 and 5 to EB1 and from EB1 to EB2. So, my understanding is, they say, for a retrogressed country in a constrainted category (EB3 for sure, and this year EB2 also), when you are limiting the # of visas to 7% of that category, do not include any fall down from the higher categories. In other words, give India only 7% of the 40,040, not 7% of 40,040 + FD.

Why do you think the fall across refers to FB to EB?

[GhostWriter]

Pedro

Thanks for a great summary. It would have taken a considerable effort to translate INA documents to English. This is going to be a long post so my apologies in advance for that. Thanks for moving this to a separate thread.

I do have a different opinion on items 7 and 8 under Section 202 and item 5 under your last general section. This relates to your interpretation that spillover visas in a category (EB2 or EB3) will be allocated with recognition of country limits. So essentially spillover visas are just an extension of category limits and are allocated in the same way, so for EBX they will first go to EBX-ROW and then to EBX-IC.
Given that both Spec and you have the same interpretation the odds of me being right are quite low, but i still would like to understand how you arrived at this interpreation.

This is an untested area since EB3 hasn't received spillover and EB2-ROW has always been current till last few months. We are talking about a scenario where EB2-ROW has a cut-off date. What happened in FY 2012 was a very different scenario. In that case visas were allocated from the regular allocation of EB2-ROW to EB2-IC (which was not right) but i want to discuss the scenario where spillover visas have to be allocated in EB2 or EB3 and EBX-ROW is not current (due to high ROW demand).
If HR-3012 passes then this debate will disappear as the country limits will go away. But if it is delayed or does not pass and EB2-ROW demand keeps on increasing how the spillover visas from EB1 will be allocated in EB2 will become very crucial (both for ROW and IC).

Here is my interpretation. (I will stick to just interpreting the law in the INA sections without any comment on how it should be. That is a very separate discussion and will side track us from this one.)

The allocation (as per my understanding of INA) is supposed to work as follows. There are two breakpoints in the procedure where the allocation process changes.
- In any category (say EB2) allocate the visas in order of PD until a country reaches its 7% limit. (Breakpoint). Take out this country from further allocation.
- Allocate the remaining visas with the country in step 1 excluded until another country hits its limit in which case that country is excluded as well.
- The above process is continued till the category limit of 40K is reached. (Breakpoint)
- If there are visas available from other categories (spill over) these are to be allocated across the entire category ignoring any country limits.

So major differences are
1. The country limit is to distribute the regular allocation of 40K in a category more evenly across countries. The rules for distribution of spillover are different than normal allocation.
2. A spillover is NOT an extension of category limit. Spillover as i understand from the rules is being used to reduce the backlog for the entire category and hence the procedure (and the country limits) used in regular allocation are not being used.
3. The idea of a country limit does fade with this interpretation. So if spillover is treated differently then a backlogged country ends up with more visas than 7% if there is a transfer from EB1 to EB2 whereas it would receive less if there was an equal increase in demand in EB1 without causing a spillover. It makes complete sense but i do not understand how it is directly implied by the text.
4. 7% is a limit on visas and restricts a country from getting more than that during the regular allocation of visas available to a category. It is not an entitilement. So the 160 countries are not each entitiled to receive up to 448K visas before EBX-IC start receiving spillover.
5. The item 8 that you outlined under Section 202 then becomes irrelevant. Since the spillover allocation is different from regular 40K allocation and it does not recognize country limits, the concept of increased country limit numbers (to account for spillover visas) becomes meaningless.

At the bottom are the various paragraphs in INA sections that are relevant for this discussion. So there are three questions
1. Are there any other paragraphs that i have missed that should be considered, can you provide those.
2. Can you describe how from these groups of paragraphs you arrive at your current interpretation (that spillover extends the category limits and hence is allocated with recognition of country limits).
3. Is it reasonable to say that more than one interpretation is possible or are you certain that only yours is the correct one.

Again thanks to you and Spec for providing all the clarity on this topic. I hope to understand and discuss without making this a heated argument.

--------------------------------------------------------
INA - Act 202
(a)(2) - Per country levels for family-sponsored and employment-based immigrants. - Subject to 1a/ paragraphs (3), (4), and (5) the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.

(a)(3) - Exception if additional visas available. - If because of the application of paragraph (2) with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of section 203 for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter.

(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.
-------------------------------------------------------

[bvsamrat]

Very good analysys.Even a layman like me feels that it is correct.
Just question? Why there an entity called EB2-WW. When its gets over the limit, why don't they take the specific country out of equation and then club it with EB2 I/C etc. etc.

Pedro

Thanks for a great summary. It would have taken a considerable effort to translate INA documents to English. This is going to be a long post so my apologies in advance for that. Thanks for moving this to a separate thread.

I do have a different opinion on items 7 and 8 under Section 202 and item 5 under your last general section. This relates to your interpretation that spillover visas in a category (EB2 or EB3) will be allocated with recognition of country limits. So essentially spillover visas are just an extension of category limits and are allocated in the same way, so for EBX they will first go to EBX-ROW and then to EBX-IC.
Given that both Spec and you have the same interpretation the odds of me being right are quite low, but i still would like to understand how you arrived at this interpreation.

This is an untested area since EB3 hasn't received spillover and EB2-ROW has always been current till last few months. We are talking about a scenario where EB2-ROW has a cut-off date. What happened in FY 2012 was a very different scenario. In that case visas were allocated from the regular allocation of EB2-ROW to EB2-IC (which was not right) but i want to discuss the scenario where spillover visas have to be allocated in EB2 or EB3 and EBX-ROW is not current (due to high ROW demand).
If HR-3012 passes then this debate will disappear as the country limits will go away. But if it is delayed or does not pass and EB2-ROW demand keeps on increasing how the spillover visas from EB1 will be allocated in EB2 will become very crucial (both for ROW and IC).

Here is my interpretation. (I will stick to just interpreting the law in the INA sections without any comment on how it should be. That is a very separate discussion and will side track us from this one.)

The allocation (as per my understanding of INA) is supposed to work as follows. There are two breakpoints in the procedure where the allocation process changes.
- In any category (say EB2) allocate the visas in order of PD until a country reaches its 7% limit. (Breakpoint). Take out this country from further allocation.
- Allocate the remaining visas with the country in step 1 excluded until another country hits its limit in which case that country is excluded as well.
- The above process is continued till the category limit of 40K is reached. (Breakpoint)
- If there are visas available from other categories (spill over) these are to be allocated across the entire category ignoring any country limits.

So major differences are
1. The country limit is to distribute the regular allocation of 40K in a category more evenly across countries. The rules for distribution of spillover are different than normal allocation.
2. A spillover is NOT an extension of category limit. Spillover as i understand from the rules is being used to reduce the backlog for the entire category and hence the procedure (and the country limits) used in regular allocation are not being used.
3. 7% is a limit on visas and restricts a country from getting more than that during the regular allocation of visas available to a category. It is not an entitilement. So the 160 countries are not each entitiled to receive up to 448K visas before EBX-IC start receiving spillover.
4. The item 8 that you outlined under Section 202 then becomes irrelevant. Since the spillover allocation is different from regular 40K allocation and it does not recognize country limits, the concept of increased country limit numbers (to account for spillover visas) becomes meaningless.

At the bottom are the various paragraphs in INA sections that are relevant for this discussion. So there are three questions
1. Are there any other paragraphs that i have missed that should be considered, can you provide those.
2. Can you describe how from these groups of paragraphs you arrive at your current interpretation (that spillover extends the category limits and hence is allocated with recognition of country limits).
3. Is it reasonable to say that more than one interpretation is possible or are you certain that only yours is the correct one.

Again thanks to you and Spec for providing all the clarity on this topic. I hope to understand and discuss without making this a heated argument.

--------------------------------------------------------
INA - Act 202
(a)(2) - Per country levels for family-sponsored and employment-based immigrants. - Subject to 1a/ paragraphs (3), (4), and (5) the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.

(a)(3) - Exception if additional visas available. - If because of the application of paragraph (2) with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of section 203 for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter.

(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.
-------------------------------------------------------

[Spectator]

Very good analysys.Even a layman like me feels that it is correct.
Just question? Why there an entity called EB2-WW. When its gets over the limit, why don't they take the specific country out of equation and then club it with EB2 I/C etc. etc.

bvsamrat,

As I understand and use the term WW (Worldwide), it refers to all Countries sharing the latest Cut Off Date in a Category.

Currently in EB2 that is All Countries in ROW plus Mexico and Philippines.

That was also the same in EB3 until recently, but now it only refers to the Countries in ROW and Mexico because Philippines now has an earlier Cut Off Date. For a long time, Mexico had an earlier Cut Off Date than ROW and Philippines.

If an individual Country is seen as likely to, or reaches the 7% limit, then they will be pulled out and shown separately. It has certainly happened from time to time to the Dominican Republic in recent years.

To a certain extent it also depends on the context the term is used in.

In this document the term Worldwide refers to total visas available to all Countries, including those limited by the 7% limit.

[GhostWriter]

And in VB it is referred to as "All Charge-ability Areas Except Those Listed". It is better not to be on the list.

bvsamrat,

As I understand and use the term WW (Worldwide), it refers to all Countries sharing the latest Cut Off Date in a Category.

Currently in EB2 that is All Countries in ROW plus Mexico and Philippines.

That was also the same in EB3 until recently, but now it only refers to the Countries in ROW and Mexico because Philippines now has an earlier Cut Off Date. For a long time, Mexico had an earlier Cut Off Date than ROW and Philippines.

If an individual Country is seen as likely to, or reaches the 7% limit, then they will be pulled out and shown separately. It has certainly happened from time to time to the Dominican Republic in recent years.

To a certain extent it also depends on the context the term is used in.

In this document the term Worldwide refers to total visas available to all Countries, including those limited by the 7% limit.

[Pedro Gonzales]

At the bottom are the various paragraphs in INA sections that are relevant for this discussion. So there are three questions
1. Are there any other paragraphs that i have missed that should be considered, can you provide those.
- Provided below
2. Can you describe how from these groups of paragraphs you arrive at your current interpretation (that spillover extends the category limits and hence is allocated with recognition of country limits).
You need to look at Section 203 for that. My initial interpretation, was that spill overs extends category limits (as you put it) and that the 7% allocation is applied to the extended category limits.
3. Is it reasonable to say that more than one interpretation is possible or are you certain that only yours is the correct one.
Certainly, as was seen with the spillover debate a few years back (with the USCIS initially deeming that spillover from EB5, EB4, EB1 and EB2ROW would go to EB3ROW ahead of EB2IC and then reversing course a few years ago. I think the act was quite clear on that point, but the USCIS read it differently, so ambiguity reigns. Similarly, I think the document is clear the way it is written, with the one exception regarding 203(a)(5)(B) which I had listed earlier. However, I understand that a different interpretation is always possible, and I hope the USCIS uses one that will permit them to advance the EB2I dates until May 1, 2008 asap.

Again thanks to you and Spec for providing all the clarity on this topic. I hope to understand and discuss without making this a heated argument.

The section below in 203(b) explains how the category limits are extended. In effect it says that the spillover is not to be treated any differently from the initial 40,040 visa numbers given to EB1, EB2 and EB3.

(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject to the worldwide level specified in section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as follows:
(1) {Refers to EB1}
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -
(A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are ...

Then, two other sections are relevant.

Firstly, the section below indicates that retrogressed countries have a claim on 7% of the visa numbers within each category.

Section 203 (e) Special Rules for Countries at Ceiling. - If it is determined that the total number of immigrant visas made available under subsections (a) {refers to FB} and (b) {refers to EB} of section 203 to natives of any single foreign state or dependent area will exceed the numerical limitation specified in subsection (a)(2) {the 7% total for FB and EB} in any fiscal year, in determining the allotment of immigrant visa numbers to natives under subsections (a) and (b) of section 203, visa numbers with respect to natives of that state or area shall be allocated (to the extent practicable and otherwise consistent with this section and section 203) in a manner so that
(1) the ratio of the visa numbers made available under section 203(a) to the visa numbers made available under section 203(b) is equal to the ratio of the worldwide level of immigration under section 201(c) to such level under section 201 (d); {Essentially says that the visa numbers to India will be 7% of FB and 7% of EB in total within that category}
(2) {relevant to FB2A and FB2B visas, not relevant to EB discussion}, and
(3) except as provided in subsection (a)(5), {has two parts (A) which you detailed referring to the ability to receive excess visas in a quarter if demand is not sufficient and (B) which I have listed out below} the proportion of the visa numbers made available under each of paragraphs (1) through (5) of section 203(b) {refers to EBs 1 through 5} is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(b). {this essentially means retrogressed countries have access to 7% of EB1, 7% of EB2, and 7% of EB3, all including spillover. The fact that EB1 does not get used up completely is what allows EB1 India to use more than 7%. Similarly, if EB2 were not to fill up, EB2IC would get to use more than 7%}

Secondly, the paragraph that is most confusing is below. I understand this to say (see my previous comment on this thread) that the when 202(e) above is being applied, the spillover is not to be included in the calculation. So, retrogressed countries do not have even a 7% claim on the spillover. See the word 'required' in blue in the below write up and in 203(b) detailed above.

202(a)(5)(B) - LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (e)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section 203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b)consistent with subsection (e) (determined without regard to this paragraph),in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens specified in section 203(b).

[Spectator]

(3) except as provided in subsection (a)(5), the proportion of the visa numbers made available under each of paragraphs (1) through (5) of section 203(b) {refers to EBs 1 through 5} is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under section 203(b). {this essentially means retrogressed countries have access to 7% of EB1, 7% of EB2, and 7% of EB3, all including spillover.

Pedro,

A good discussion.

I agree with the above, which causes a small modification to what I said previously.

As I understand it now:

With the initial allocation, it is saying that the 9,800 visas that normally make up 7% for a Country across all EB when the overall allocation is 140,000 are allocated 28.6% each to EB1-3 and 7.1% each to EB4-5.

That gives us the familiar 2,803 figure for EB1-3.

Spillover (FD) is also allocated by 203(b) so should also follow this principle.

For every 100 spillover visas available to EB2 from EB1, the 7% limit in EB2 would rise by 7.

That would mean China and India could use another 7 each and the remaining 86 would be available to the Other Countries while they had demand and did not themselves reach the individual 7% limit.

If there was no demand from Other Countries for any spillover, or when any demand was exhausted, then (5)(A) would come into play and all remaining spillover visas could be used by China and India based strictly on PD and regardless of the fact that they had reached the 7% limit.

Funnily enough, it was a subtlety that I had picked up in another context and forgot to apply to this situation.

[justvisiting]

JV,

I read that differently. I don't understand how they define Fall Across, but I think, in this context, it is what we call Fall Down.

Why do you think the fall across refers to FB to EB?

I'm going to quote subsection e here. My "transaltion" is inline in italics.


(e) Special Rules for Countries at Ceiling. - If it is determined that the total number of immigrant visas made available under subsections (a)FB and (b) EBof section 203 to natives of any single foreign state or dependent area will exceed the numerical limitation specified in subsection (a)(2)Per country cap in any fiscal year, in determining the allotment of immigrant visa numbers to natives under subsections (a)FB and (b) EBof section 203, visa numbers with respect to natives of that state or area shall be allocated (to the extent practicable and otherwise consistent with this section and section 203) in a manner so that

(1) the ratio of the visa numbers made available under section 203(a) FB to the visa numbers made available under section 203(b) EB is equal to the ratio of the worldwide level of immigration under section 201(c) 226K,usuallyto such level under section 201 (d) 140K+left over from FB in the previous year;

Basically, if a country hits the cap, the spillover needs to be shared by FB and EB in a ratio of 226 to 140.

However this limited by the section you quoted


(B) LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (e)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section 203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b)consistent with subsection (e) (determined without regard to this paragraph),in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens specified in section 203(b).

In the case of a country that hit 7%, if the total number of EB visas issued is more than the number it should get according to subsection (e), that is, the 226 to 140 ratio, then all the visas should be considered as required for EB.

[Spectator]

Pedro,

Some more laws that have an effect on numbers (or the process):

Source: INA 203(b)(6)

(6) Special rules for "k" special immigrants. -

(A) Not counted against numerical limitation in year involved. - Subject to subparagraph (B), the number of immigrant visas made available to special immigrants under section 101(a)(27)(K) in a fiscal year shall not be subject to the numerical limitations of this subsection or of section 202(a).

(B) Counted against numerical limitations in following year.-

(i) Reduction in employment-based immigrant classifications. - The number of visas made available in any fiscal year under paragraphs (1), (2), and (3) shall each be reduced by 1/3 of the number of visas made available in the previous fiscal year to special immigrants described in section 101(a)(27)(K) .

(ii) Reduction in per country level. - The number of visas made available in each fiscal year to natives of a foreign state under section 202(a) shall be reduced by the number of visas made available in the previous fiscal year to special immigrants described in section 101(a)(27)(K) who are natives of the foreign state.

(iii) Reduction in employment-based immigrant classifications within per country ceiling. - In the case of a foreign state subject to section 202(e) in a fiscal year (and in the previous fiscal year), the number of visas made available and allocated to each of paragraphs (1) through (3) of this subsection in the fiscal year shall be reduced by 1/3 of the number of visas made available in the previous fiscal year to special immigrants described in section 101(a)(27)(K) who are natives of the forei gn state.

Source INA 203(e)

e) Order of Consideration. -

(1) Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General (or in the case of special immigrants under section 101(a)(27)(D) , with the Secretary of State) as provided in section 204(a) .

Basically that cases should be processed in PD order.

Source: INA 203(g)

g) Lists.- For purposes of carrying out the Secretary's responsibilities in the orderly administration of this section, the Secretary of State may make reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year within each of the categories under subsections (a), (b), and (c) and to rely upon such estimates in authorizing the issuance of visas.

The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within 2 years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien's control.

That the Visa Office can make and rely on estimates when setting the Cut Off Dates and authorising the allocation of a visa. The VO is not constrained to act purely on known demand.

That for CP cases at least, failure to respond within one year of being advised the case is ready to proceed will cause the case to be terminated (with an appeal process).

[qesehmk]

All of you - bow to you. Spec your last post is very lucid. I think it is high time to concede any argument over this topic. Great job by everybody.

[GhostWriter]

All of you - bow to you. Spec your last post is very lucid. I think it is high time to concede any argument over this topic. Great job by everybody.

Q, i can take the lead in conceding !!

Spec, Pedro, thanks for your explanations. I now understand how you arrived at your interpretation and it does make sense.
Pedro, of all the sections i think the below one that you mentioned clarifies that spillover just extends the category limits and is to be treated the same way. After thinking through the text again I also realized that it finally does boil down to what Spec mentioned in his first post.

My only remark would be that if you do post it in the facts and data section it would be good to state that alternate interpretations are possible (if you agree). This will challenge some of the people to find those. I beleive that the text provides rules and constraints and it will be possible to come up with more that one solution that will satisfy all these criteria. You never know someone can stumble upon something that ends up benefitting us.

Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants ...

It boils down to the interpretation of the following:
In particular:

"exceeds the number of qualified immigrants who may otherwise be issued such visas "

Once you accept that spillover extends the category limit the increase in country limit for a category becomes easy to follow. The way i understand it is that the number 7% of 140K is fixed i.e. 9.8K. This is to be allocated across categories in proportion to visa numbers available for each category. So spillover from one category to other will increase the country limit in one and reduce it in the other category.

So if regular allocations are 40K each for EB1,2,3 and 10K each for EB4,5 but the demand in EB1 is only 25K (i.e. 15K spillover to EB2) then for India category limits will be 1.75K for EB1, 3.85K for EB2, 2.8K for EB3 and 0.7K each for EB4 and EB5 (9.8K divided in proportion of 25:55:40:10:10)

If we assume that entire 25K EB1 demand is by India then EB1-I gets 1.75K from the allocation. EB1-I gets an additional 23.25K which is exempt from country limits. There is a spillover of 15K from EB1 to EB2 which gives additional 1.05K to EB2-I which we already accounted for above in increased category limit of 3.85K for EB2-I.

Fun exercise - Try the same example except assume that all the 25K demand in EB1 is by EB1-ROW.

[Pedro Gonzales]

JV, I understand where you're coming from, but I do not think that is what 202(a)(5)(B) was intended to mean. However, as I mentioned earlier, I don't think it is a concisely written paragraph so it is open to your interpretation too.

[qesehmk]

Ghost - you can and should please continue to challenge if you think there still is room. I was only speaking for myself. I should've said it more clearly in my first post.

Q, i can take the lead in conceding !!