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Retrogression, priority dates and Visa bulletins Issues surrounding the retrogression of the priority dates for the various employment based categories

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  #1  
Old 08-20-2008, 02:55 PM
spatial spatial is offline
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Thumbs down Unused Visa # for EB3

DOS has alloted most unused visa # into EB2 category this year, and EB3 was stuck due to no additional unused EB1 visas.

Visa Bulletin mentioned they did this in according to the requirements of Section 202(a)(5) of the Immigration and Nationality Act. But actually this might be a misunderstanding of Section 202(a)(5) and Section 203(b) - There is NO words in the act on how to allot unused visa # to differnt categories. Even the country limit and category limit would not apply if there are unused visas #. The allotment Mr. Charles Oppenheimer did horizontal spillover caused longer and more backlogs of EB3.

Congress has a concern on the backlogs and Bush's administration promised to reduce backlogs as much as they can. If Immigration and Nationality Act allows the government to spillover the unused visa # to EB2 & EB3, and a more humane and fair system should take care of early priority date first and do whatever the government has promised, should we ask Mr. Charles Oppenheimer to think about alloting some unused visas to EB3 so it can move forword a little bit?
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  #2  
Old 08-20-2008, 03:07 PM
gcisadawg gcisadawg is offline
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Originally Posted by spatial View Post
DOS has alloted most unused visa # into EB2 category this year, and EB3 was stuck due to no additional unused EB1 visas.

Visa Bulletin mentioned they did this in according to the requirements of Section 202(a)(5) of the Immigration and Nationality Act. But actually this might be a misunderstanding of Section 202(a)(5) and Section 203(b) - There is NO words in the act on how to allot unused visa # to differnt categories. Even the country limit and category limit would not apply if there are unused visas #. The allotment Mr. Charles Oppenheimer did horizontal spillover caused longer and more backlogs of EB3.

Congress has a concern on the backlogs and Bush's administration promised to reduce backlogs as much as they can. If Immigration and Nationality Act allows the government to spillover the unused visa # to EB2 & EB3, and a more humane and fair system should take care of early priority date first and do whatever the government has promised, should we ask Mr. Charles Oppenheimer to think about alloting some unused visas to EB3 so it can move forword a little bit?
That is not true...If you look at the Visa Bullettin, it says

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any umbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".



Based on the above EB1 spills over to EB2 first.....Eb3 gets unused EB2.
EB3 gets EB1 only if it is not used by EB1.

I'm EB3-I with Oct 2003 PD and I understand your frustration. There is hope only if a legislation change happens. Based on my calculation, there are about 50K to 60K EB3-I pending before me.

Thanks,
G
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  #3  
Old 08-20-2008, 03:17 PM
GCOP GCOP is offline
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Default Are the Numbers correct ?

Can you please mention the source or any basis of 50 to 60 K applications pending before October 2003. I am interested to know this because my PD is also EB-3 (India), October 2003. Thanks.
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  #4  
Old 08-20-2008, 03:17 PM
spatial spatial is offline
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Default

Quote:
Originally Posted by gcisadawg View Post
That is not true...If you look at the Visa Bullettin, it says

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any umbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".



Based on the above EB1 spills over to EB2 first.....Eb3 gets unused EB2.
EB3 gets EB1 only if it is not used by EB1.

I'm EB3-I with Oct 2003 PD and I understand your frustration. There is hope only if a legislation change happens. Based on my calculation, there are about 50K to 60K EB3-I pending before me.

Thanks,
G

It is not true. The orignal text in IMMIGRATION AND NATIONALITY ACT says "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 members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

Beyond 28.6 percent, there is no words/requirements from the law that EB1 should spillover to EB2 first, then EB2 can spillover to EB3. It is just saying that EB1 can spillover to EB2, EB1&EB2 can spillover to EB3.




"

Last edited by spatial; 08-20-2008 at 03:20 PM.
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  #5  
Old 08-20-2008, 03:23 PM
trueguy trueguy is offline
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Default

It looks like USCIS is interpreting the rule the way they like.

It looks to me that they have lots of pressure from big companies and they are approving their applications in Particular. e.g., EB2-I with PD of 2006 are getting approvals, however EB2-I with PD in 2004 are still waiting.

There is no FIFO here and there is no clear rule. They can do whatever they like.

I am EB3-I too, plz don't take me wrong.
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  #6  
Old 08-20-2008, 03:40 PM
GCOP GCOP is offline
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Default Only Employment Based AOS

I read one post on one of the IV thread. According to that 740,969 Applications are including Family based application. according to that post there are about 400,000 Employment based AOS applications pending.
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  #7  
Old 08-20-2008, 03:53 PM
gene77 gene77 is offline
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Default I really hope you're incorrect gcisadawg

I'm at Oct 2004 (EB3-I), 35 years for me .... you don't say!

No seriously guys, 'spatial' brings up a good point; the laws are up for interpretation by the USCIS.
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  #8  
Old 08-20-2008, 04:00 PM
sc3 sc3 is offline
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Originally Posted by spatial View Post
It is not true. The orignal text in IMMIGRATION AND NATIONALITY ACT says "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 members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

Beyond 28.6 percent, there is no words/requirements from the law that EB1 should spillover to EB2 first, then EB2 can spillover to EB3. It is just saying that EB1 can spillover to EB2, EB1&EB2 can spillover to EB3.




"
That is true. USCIS behaviour no longer (or never has) assumes the meaning of EB1&EB2 wording in the law text.

Previously a lot of visas flowed into EB3 because USCIS misinterpreted ( rather did not take into account) the AC21 change, which suggests that the per-category spill over numbers must be used within the category before flowing out of the category.

Unfortunately, when they realized it, they seem to now ignore (or have always ignored) the wording of EB1&EB2 numbers flowing in EB3. A lot of people here don't agree with this interpretation, but I am very sure that USCIS is misreading the law and is shafting EB3 big time.

I dont know how to word a letter to USCIS that shows them their oversight, and yet word it in a positive (or a non-confrontational) manner. If you have any idea's, lets work on a letter campaign to make USCIS aware of this. However, let us do this through personal PMs while we work out the details, as this is a very contentious issue and you will spend a lot of time responding to distracting arguments.
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  #9  
Old 08-20-2008, 04:20 PM
wantgc23 wantgc23 is offline
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Default May be AILA can help ?

Since it is a question of Interpretation of the law, It would be nice if someone in IV who has connections with AILA makes an inquiry with USCIS through AILA.


Quote:
Originally Posted by sc3 View Post
That is true. USCIS behaviour no longer (or never has) assumes the meaning of EB1&EB2 wording in the law text.

Previously a lot of visas flowed into EB3 because USCIS misinterpreted ( rather did not take into account) the AC21 change, which suggests that the per-category spill over numbers must be used within the category before flowing out of the category.

Unfortunately, when they realized it, they seem to now ignore (or have always ignored) the wording of EB1&EB2 numbers flowing in EB3. A lot of people here don't agree with this interpretation, but I am very sure that USCIS is misreading the law and is shafting EB3 big time.

I dont know how to word a letter to USCIS that shows them their oversight, and yet word it in a positive (or a non-confrontational) manner. If you have any idea's, lets work on a letter campaign to make USCIS aware of this. However, let us do this through personal PMs while we work out the details, as this is a very contentious issue and you will spend a lot of time responding to distracting arguments.
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  #10  
Old 08-20-2008, 04:31 PM
acecupid acecupid is offline
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Spatial, I agree with your views. There is nothing in INA which clearly talks about how the spill over should be allocated. USCIS is acting on its own whims and fancies. In last months' visa bulletin they mentioned questions were asked on how the spill over was allocated and decided to make it horizonal instead of the historical vertical spill over. So I am sure we should get some concrete answer how they decided to change it. Based on what ? which clause of INA states that ? I think we should all write letters to Mr. Oppenhiem demanding explanation on the same.
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  #11  
Old 08-20-2008, 04:33 PM
eb3_2004 eb3_2004 is offline
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Default Quick Thing-->I may be wrong.

Quote:
Originally Posted by spatial View Post
It is not true. The orignal text in IMMIGRATION AND NATIONALITY ACT says "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 members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
"
The item mentioned above is for EB2, meaning any spill over to EB2 is from unused EB1.

for EB3 the ACT mentions the following

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 paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2):

The meaning is EB3 gets all unused from EB1 and EB2... This is the catch, does this mean spillover from EB1 after EB2 catches up (or) spillover from EB1 even if EB2 is not current..

If they have done spillover from EB1 to EB3, even when EB2 is not current...we can give this a try.

Sorry for the confusion...Just got excited and went over the allocation of visas from the ACT

http://www.uscis.gov/propub/ProPubVA...b0686648558dbe
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Last edited by eb3_2004; 08-20-2008 at 04:40 PM.
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  #12  
Old 08-20-2008, 04:33 PM
gcisadawg gcisadawg is offline
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Default

Quote:
Originally Posted by gene77 View Post
I'm at Oct 2004 (EB3-I), 35 years for me .... you don't say!

No seriously guys, 'spatial' brings up a good point; the laws are up for interpretation by the USCIS.
Man, believe me, I'd be happy to accept that my numbers are incorrect!

Thanks,
gcisadwag
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  #13  
Old 08-20-2008, 04:50 PM
sc3 sc3 is offline
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Default

Quote:
Originally Posted by eb3_2004 View Post
The item mentioned above is for EB2, meaning any spill over to EB2 is from unused EB1.

for EB3 the ACT mentions the following

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 paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2):

The meaning is EB3 gets all unused from EB1 and EB2... This is the catch, does this mean spillover from EB1 after EB2 catches up (or) spillover from EB1 even if EB2 is not current..

If they have done spillover from EB1 to EB3, even when EB2 is not current...we can give this a try.

Sorry for the confusion...Just got excited and went over the allocation of visas from the ACT

http://www.uscis.gov/propub/ProPubVA...b0686648558dbe
It actually comes down to the language. I haven't read the rollover from EB to FB (if at all it happens), but look at the language for EB1. It talks about regular number + any not used by EB5. The language for EB5 is lost when it trickles down.

Does it mean: 1. EB5 can only be used by Eb1 and not rolled down further?

or

2) Does it mean that any of the EB5 unused numbers that are also not required by Eb1 rolls down to EB2.

If it is choice 1, then I suspect we have no case. If however, it is choice 2, then it is clear through the language that spill over Eb1 goes to Eb2 and EB3 at the same time. If not, based on the language of EB1, Eb3 would have just said "unused numbers of EB2", which means it would use Eb1 numbers only if Eb2 did not need them.



Suggestion to go via AILA is a good one, but do we have contact into AILA??
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  #14  
Old 08-20-2008, 05:00 PM
eb3_2004 eb3_2004 is offline
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Default Has to be Choice 2

Quote:
Originally Posted by sc3 View Post
It actually comes down to the language. I haven't read the rollover from EB to FB (if at all it happens), but look at the language for EB1. It talks about regular number + any not used by EB5. The language for EB5 is lost when it trickles down.

Does it mean: 1. EB5 can only be used by Eb1 and not rolled down further?

or

2) Does it mean that any of the EB5 unused numbers that are also not required by Eb1 rolls down to EB2.

If it is choice 1, then I suspect we have no case. If however, it is choice 2, then it is clear through the language that spill over Eb1 goes to Eb2 and EB3 at the same time. If not, based on the language of EB1, Eb3 would have just said "unused numbers of EB2", which means it would use Eb1 numbers only if Eb2 did not need them.



Suggestion to go via AILA is a good one, but do we have contact into AILA??
I feel it is Choice 2 as Choice 1 is not possible..If Choice 1 is the case how is EB5-->EB1-->Eb2 happening now justified???

Also, Is EB1-I/EB1-ROW quota used up every year???If not that has to trickle down to EB2 and EB3 if they change the EB3 allocation interpretation.
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  #15  
Old 08-20-2008, 05:26 PM
485Mbe4001 485Mbe4001 is offline
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yes, but july 2007 VB and the subsequent USCIS change related to approving cases with pending namechecks added a significant number awaiting for approval. Then a couple of months back USCIS woke up from slumber or had a shot of 100 proof single malt, re read some law and decided that the overflow allocation should be changed. The result is that there will be next to nothing for EB3 (for that matter EB2 will also have less overflow available) as they clear the backlogs, i doubt anything besides a recapture in the short term and a significant rehaul in the long term will work...i hope i am wrong but EB3 I and C are in for a long wait.


Quote:
Originally Posted by sachug22 View Post
http://immigrationvoice.org/forum/sh...6&postcount=15

For last 10 years EB3 took numbers equally from EB2 and EB1. Even when EB2 was retrogressed EB2 numbers where made available to EB3.

Last edited by 485Mbe4001; 08-20-2008 at 05:28 PM.
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