Thanks Spectator for the detailed explanation. I'm sure a lot of people are in this situation.
It seems from your post that one can simply send an email to USCIS asking to switch from EB2 to EB3 as basis (which is very similar to the reverse scenario that has been done successfully over the last few years)
I agree with your theoryOriginally Posted by march1612
that most EB2I with PD <2010 are essentially upgrades from EB3. so, we already have a ton of Inventory of folks who have both EB2 and EB3 I-140 approved and ready to go in either direction for their AOS.
But if they come back in EB3 Lane then wouldn't they be subject to Interview process?I agree with your theory
With all reverse-porting and porting, can we assume EB2 and EB3 would stabilize around May 2010 during FY19 ?I agree with your theory
If 485 is already applied prior to March 2017, There is no mandatory interview process. However, it is subjected to officer discretion for send out an interview if he/she would like to have additional information from the applicant
Interview process is no longer the big elephant in the room that it is being made out to be. Folks are getting scheduled pretty fast. April 2018 filers are already having their Interviews scheduled and i even saw some GC Approvals for April 2018 filers.
A small matter of 6+ months towards interview.
We should have some good data analyst and mathematical modelers on this forum. With available data and some conservative assumptions cant we come up with downgrading chart/prediction so we can utilize Eb3i and eb2i quota so both categories move simultaneously and no one gains unfair advantage? We have been sympathetic with eb3i all along. But now due to porting eb3i will have unfair advantage.
Im not smart nor i have a good understanding on how to interpret/analyze available data
Last edited by swordfish380; 09-18-2018 at 08:57 PM.
For a decade EB3 did not utilize the full quota. As per rules right of spill over goes to EB1 and EB2. EB1 did not have enough so EB2 got a lot of SO till 2014. Only option for EB3 guys, port. Sympathies all along did not have any use. Also when EB2 I moved to 2010 in 2012, EB3 was languishing in 2002, simultaneous forward was conveniently ignored.
So after a long time EB3 gets its first chance of filing faster than EB3, you deem it as unfair advantage. I repeat it is only filing. Even from 2007 people in EB3 are waiting to be greened.
If people can port down from EB2 to EB3, they will do it.
I guess everyone with a PD before 2010 would have a 5+ year experience and hence qualify for both EB3 and EB2 submissions. So people would keep moving and also anyone with EB3 / EB2 PDs from 2015 onwards, by the time their dates become current they will gain enough experience to file in any category. So there is no unfair advantage for anyone here. and this to and fro would continue for China and India until we have good SO's which is not going to happen with EB1 backlogs or until the country cap removal which is also not going to happen.
I would agree that EB3 SO has not been handled well. The full allocation was not used, even when EB3-ROW was retrogressed. With Countries retrogressed, no visas in EB3 should be wasted, as the horizontal SO rules come into effect.
It's a myth that EB1 used to provide SO to EB2. It only did so in FY2011 when the introduction of the Kazarian memo caused processing of EB1 to be paused.
Spillover Source to EB2-I ------- FB ------ EB1 ----- EB2 ---- EB4 ----- EB5 --- Other --- Total
FY2010-FY2014 ----------------- 27,659 -- 12,156 -- 23,786 -- 8,263 -- 17,315 -- 1,210 -- 90,389
11,158, or 92% of EB1 spillover to EB2 came in FY2011.
The real source of perceived SO from EB1 was not EB1 itself, but under use in Family based (criminal, since all categories are always been retrogressed), EB5 and EB4.
DOS has since sorted out the FB allocations and number use has increased in EB5 and EB4.
That leaves horizontal SO within EB2, which has now also dried up. Even some of that was a bit of an illusion, since very slow PERM processing at various times during the period created a lack of ROW I-485 applications within a FY.
As for your point about EB3-I not moving in FY2012, at that time EB2-I was running out of inventory, so CO pushed the dates forward to create a new one and have visibility into future demand. The same was not true of EB3-I at that time, so the dates were not advanced for EB3-I.
Today, we have the opposite situation. EB3-I has run out of the previous inventory because they have now surpassed July 2007. CO needs to build a new inventory for demand forecast purposes. There is still plenty of EB2-I inventory, so there is no need to advance those dates more than supply of visas allows.
Without an irritant, there can be no pearl.
Spec spoke about spillover quite beautifully. I just want to add that pre-2011 EB2-I used to significantly benefit from EB5 which would only utilize barely 1.5K numbers and almost 8-9K would flow down to EB2 via EB1. EB1 itself would almost consume its own numbers and perhaps used to leave 2-3 K on the table.
Another source was EB4 which would typically consumer 3-4K and the rest was given to EB2 via EB1.
As Spec correctly points out now all these sources have pretty much dried up leaving EB2-I at the mercy of EB2-ROW.
There is one more nuance here - the EB2-I was not always lucky to get all the visas and then use it.
The agencies (DoS and/or USCIS) used to take the SO in EB2 and move it down to EB3-ROW. This was challenged in courts (don't remember how and when) and that's how the horizontal spillover's precedence was established.
p.s. - Not many people here remember about the Kazarian memo. And that's a good thing believe me.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
You have rephrased my point. In FY 2012 EB2-I moved forward due to the lack of inventory. In FY 2019 we are in the cusp of EB3-I moving forward due to the lack of inventory. EB3 - ROW was current since June 17. Even then EB3 wasted close to 2500 visa's in FY 17. Added to that USCIS did not respect filing date at all at the start of FY18. Even with the lack of inventory for EB3-ROW, EB3-I had a pathetic movement for the 2nd quarter of FY17 with no movement in the first quarter. All it resulted in not proper utilization of the numbers and when FY19 started when USCIS accepted filing date after 2 years, people come up with unfair perception even though EB3 -I is 11 years behind.
I am suggesting that illogical porting by EB3 -> EB2 ->EB3 (flipflop) (people who already have AOS in EB2) will potentially skew the actual demand which will result in cascading delay again for FY19.
My company's immigration person has said this about reverse porting -
a) Conversion of an EB-3 case to EB-2 implies a regression. XYZ as a company will look bad and lose its credibility in front of USCIS. Also XYZ could be questioned by the USCIS on why we filed your case in EB-2 in the beginning and are now filing in EB-3. Does it mean that the same job for which we filed your Green Card now has reduced requirements? Why should XYZ as a company be made to look bad in the eyes of the USCIS and possibly even face legal or other disciplinary action, in order to meet your requirement of lowering the category of your immigration petition? USCIS could come back and question us that we are basing our immigration requirements conveniently on the basis of priority dates rather than based on genuine requirements of the positions and the company.
b) Remember that Green Card is not filed on your individual education and experience, but on the education and experience requirements of the job for which your Green Card was filed. Please get me a letter from your BU Head stating why the requirements of the job are now lower and can be fulfilled by a person with lesser educational qualification and experience than what we had earlier anticipated.
Not sure how to answer this. Can someone help if the immigration dept is justified in having this point of view.
All are valid points, in LASHAB's post.
Which means it only makes sense for those with I-485 pending who had upgraded from EB3 to EB2, since they will be having both EB3 & EB2 I-140. In that case, you won't have to deal with the company, just need to send an email to USCIS asking to use EB3 I-140 instead.
I am not sure that is a valid argument - though it does not surprise me that companies are using that argument to keep you tied to them longer. Someone can file in EB3 even if the job says that it needs MS or 5 year experience. I don't think it says anywhere that you should file in EB2 simply because the job demands a MS.
I am sure your company will change tact if enough people change jobs to start a new EB3 application at a new company.
But all of those arguments are bull****.
a) The Basis of the new EB3 I-140 is the same PERM that had sufficient requirements for an EB2 I-140 approval.
b) The requirements (roles and responsibilities) of the job haven't changed.
c) The education and experience requirements haven't changed.
d) The PWD hasn't changed.
The I-140 petition will be identical to the original one, except that it is requesting approval under EB3.
There's no maximum requirements for filing under EB3. You could require a Nobel Prize and it wouldn't stop the case being filed under EB3.
It's just using the most advantageous Category for the beneficiary of the petition.
That's not unlawful.
This is just a convenient excuse for a Company not to file under EB3. It must really be ******* some HR jerks off.
They would only have a valid point if you were asking them to file a PERM with lower requirements than the job would normally have and which precluded an EB2 I-140. Then, they could never file for the position under EB2 again and any previous I-140 approvals under EB2 would become questionable.
Last edited by Spectator; 09-19-2018 at 02:30 PM.
Without an irritant, there can be no pearl.
Just want to clarify for my own understanding - How can the PERM which was qualified for EB2 requirement can be qualified now for EB3 ? Person can qualify for EB2 or EB3 based on his education/experience but PERM was filed based on the job requirement. If the same PERM is used now for EB3 I140, isnt that downgrading the job requirement ?
By definition, a PERM for a job that meets the minimum EB2 requirements must also meet the minimum requirements for EB3.
The EB3 I-140 is being filed on the basis of the same PERM certification that also meets the requirements to file an EB2 I-140. The job role is the same, the minimum educational and experience requirements are the same and the minimum that can be paid is the same
The fact that a PERM certification meets the minimum requirements for EB2 does not exclude it being used for EB3, or mean that it must be used to support the highest EB category it qualifies for.
The job requirements are unchanged. It's just that the I-140 is being requested in a different EB category.
Why is this so difficult to understand.
My last.
Last edited by Spectator; 09-19-2018 at 02:51 PM.
Without an irritant, there can be no pearl.
That is what I have been saying. But even for those who have only filed in EB2 and do not have an EB3 I-140, it does make sense to downgrade, simply because the EB3ROW SO would be utilized by EB3 category before being sent up to EB1. I don't see EB2 having any SO for a couple of years.
Thanks Spec
I checked with my attorney about downgrading as my dates will be current under EB3. This is what they said. Do you guys know if anyone faced this like the chinese?
"while it is possible to change preference categories, it is not recommended. It could adversely affect you at the interview stage of your green card process when the officer sees that you changed from EB2 to EB3 and inquires why you did so. It is also important to remember that while EB3 is currently ahead of EB2, it could (and likely will) switch back at any time."
Every attorneys are saying pretty much similar stuff. Even with all the rejections and scrutiny happening with USCIS, and even after your own lawyers explanation and with a 2009 PD, I am seriously intrigued what motivates you to explore this option? Are you having kids who are aging out? H1 renewal issues?
What is stopping you from staying put for another month or 2?
Well, I'm inclined to believe that EB2 INDIA will not move past 2009 May 22nd this FY.
That's baloney Vijay. Don't listen to them.
The GC is sponsored by employer - so the question should be directed at Employer not you.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
There are currently 1 users browsing this thread. (0 members and 1 guests)
Posting Permissions
Reply With Quote