(Transfered from ImmigrantionVoice.com, Author: Longq)
Hello IV and its core members,
I am one of the members of the forum and suffering due to the severe retrogression of EB visas. I highly appreciate IV’s effort to bring some legislative relief to address the severe backlogs in EB visas. I too participated in all IVs campaign in urging the law makers to bring some relief for this crisis. However, I have some concern here; about the method followed U.S DOS in allocating EB visas particularly in EB2 category for India and China. I am worried whether U.S DOS is violating the INA 202 (a), by suspending AC21 provision that eliminates country quota in EB categories. If they are violating by mistake, it is our responsibility to notify/clarify with them or we need to understand the law clearly. This is very important. Because, even if 110th congress passes SKIL bill, if DOS violates the AC21 law then it will not help applicants from oversubscribed countries (India and China). Here is my analysis based on following facts.
The cutoff date for EB2 India has moved just 7 days since last 9 months. However EB2 –Row has been current. EB2- ROW has never retrogressed before. EB3 ROW has seen considerable movement in last 9 months.
There may be four possible separate or combination of following reasons for the freeze of cutoff dates for India in EB2 at Jan 2003.
1. The backlog elimination effort of DOL pumped massive approved labor certificates from BEC. There may be tons of EB2 applicants from India and China with PD in the year 2001 and 2002 might have applied 485s based on recent approvals from BEC. However I doubt that. Because, in the year 2001, 2002 and 2003, EB3 India and China were “current”. No body cared about filing EB2 labor certification till the later part of 2004. Most lawyers preferred to file EB3 as it was easy, and there were no difference between EB3 and EB2 at that time. First ever indication for EB3 retrogression was issued by DOS only in later part of 2004. I doubt so many people have filed EB2-labor till 2003, keeping in mind that EB3 will retrogress in 2004 or future. Traditionally EB2 has been less demanding compare to EB1 and EB3.
2. Perhaps, there may be a huge demand by ROW (Due to PERM) to consume all the 86% of visa numbers in EB2 category in every month that prompts DOS to allocate only 7% to India and China. I doubt this too, because India and China itself consume about 60% of EB2 visas.
3. There may be lot of EB3 Indians and Chinese with PD 2001 and 2002 porting their PD from EB3 to EB2 by filing new LC and EB2-I-140. This may escalate the demand. However, how many will do this? How many employers will to do this “favor” for their employees? A real US employer/big corporations will not do double time work for an employee. Only consulting/staffing companies will do this. I think this may be a small group (or may not be?).
4. There may be another possible reason. There may be something wrong with U.S.DOS in allocating visa numbers in EB2 category, as per section 202 (a) of current INA. They may be issuing only 2800 (7% of 40,000) visas to India and China in EB2 and redirecting unused EB2 numbers to EB3 category. They may be imposing hard country cap in EB2 (Suspending AC21 law as per their VB Nov 2005). There is a large room for this speculation, due to the pattern of cutoff date movement in EB2 category. This is just a speculation. This argument/speculation is valid if DOS has issued less than 40,000 EB2 visas in FY 2006 as mandated by the law, and issued those numbers (40,000 minus actually issued) to EB3-ROW. In my view, it violates section 203 (b) (2) of the INA. One has to wait till they release statistics for FY 2006, to see how many EB2 visas are issued in that FY.
Here is some detailed analysis that says why it violates the law.
Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 203 a and b of the Immigration and Nationality Act (INA) sets numbers for each preference categories with in FB and EB.
Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. This section also explains how to handle unused numbers with respect to country quota.
Even before AC21 rule enacted in 2000, there was no “hard” country cap as per INA then. Here is the section of INA before year 2000, describes how to allocate unused visas, if overall/total demand for FB an EB visas are less than supply*.
INA 202 (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-Family category) and (b-Employment category) 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”.
Therefore, the 7% country cap had always been “soft” till year 2000.
After year 2000, AC21 has completely removed country cap in each employment category, if excess visas are available in each preference categories.
After 2000 (After AC21) the following law was added to INA in the section 202.
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.
As per my simple interpretation of above AC21 rule, DOS should allocate unused visas by ROW –EB2 (ROW- countries other than India and China in EB2 category) for the first two months of any calendar quarter to over-subscribed countries (India & China) at the third month of that calendar quarter. They should not allocate to lower Preference category (EB3), if demand is more in higher preference category (EB2) to consume all the visa numbers in that preference category. They should allocate visas to all the documentarily qualified applicants in that (EB2) preference category, irrespective of country of birth. If they followed this rule/law, there may be a considerable movement in cut-off dates for India and China in Dec 2005, Mar, June and Sep of 2006 in EB2 (last month of each calendar quarter in a fiscal year). We have not witnessed such movement in last 1.5 years. No one knows how DOS is allocating numbers. They may be allocating only 7% visas to India and China in EB2 category very strictly, every month, and allocating unused numbers to EB3 category, by suspending AC21 law as indicated in their Nov 2005 Visa Bulletin. If they do so, it is against the law, at least in my interpretation of AC21 rule that eliminates country quota in EB categories.
DOS can not interpret above AC21 rule that eliminates per country limit applies “totally” to all EB categories put together, not by individual preference categories. I.e. If they say they will issue more than 2,800 visas to EB2- India per year (more than 7% of 40,000), provided overall demand for EB visas are less than 140,000. If they interpret the law like this, then there is no need for section 202(a) (5) (A) due to AC21 law. The law before AC21 {i.e. section 202 (a) (3)} itself address the elimination of country quota in both FB and EB category*. Then, section 202(a) (5) (A) is a duplicate wording of section 202(a) (3). So, this section of AC21 law becomes a redundant/duplicate law. Then, there is no meaning of employment “preference” category if they interpret “totally or overall worldwide demand”. In other words, a non-Indian/Chinese restaurant cook (EB3) is more preferred than a NIW PhDs (EB2) from India or China. Is it the intend of the congress when enacting AC21 law in removing per country limitation in EB category? Is it the American Competitiveness in 21st century? I highly doubt that.
Now it is the time to ask US DOS, how they are allocating visa number in EB2 category. If DOS interpreting the law differently, then we need to ask the law makers (Congress) what is their original intension behind the section 202(a)(5)(A) when they drafted the AC21 law in 2000 and how it is differ from 202 (a) (3).
Perhaps Core IV team can initiate to discuss/consult this issue with an immigration lawyer and place an enquiry with DOS or Law makers, if needed.
(*Note: DOS do not mix FB and EB categories for visa number allocation/calculation to meet the per country limit. They keep both in separate track to meet separately the 7% limit)
Hello IV and its core members,
I am one of the members of the forum and suffering due to the severe retrogression of EB visas. I highly appreciate IV’s effort to bring some legislative relief to address the severe backlogs in EB visas. I too participated in all IVs campaign in urging the law makers to bring some relief for this crisis. However, I have some concern here; about the method followed U.S DOS in allocating EB visas particularly in EB2 category for India and China. I am worried whether U.S DOS is violating the INA 202 (a), by suspending AC21 provision that eliminates country quota in EB categories. If they are violating by mistake, it is our responsibility to notify/clarify with them or we need to understand the law clearly. This is very important. Because, even if 110th congress passes SKIL bill, if DOS violates the AC21 law then it will not help applicants from oversubscribed countries (India and China). Here is my analysis based on following facts.
The cutoff date for EB2 India has moved just 7 days since last 9 months. However EB2 –Row has been current. EB2- ROW has never retrogressed before. EB3 ROW has seen considerable movement in last 9 months.
There may be four possible separate or combination of following reasons for the freeze of cutoff dates for India in EB2 at Jan 2003.
1. The backlog elimination effort of DOL pumped massive approved labor certificates from BEC. There may be tons of EB2 applicants from India and China with PD in the year 2001 and 2002 might have applied 485s based on recent approvals from BEC. However I doubt that. Because, in the year 2001, 2002 and 2003, EB3 India and China were “current”. No body cared about filing EB2 labor certification till the later part of 2004. Most lawyers preferred to file EB3 as it was easy, and there were no difference between EB3 and EB2 at that time. First ever indication for EB3 retrogression was issued by DOS only in later part of 2004. I doubt so many people have filed EB2-labor till 2003, keeping in mind that EB3 will retrogress in 2004 or future. Traditionally EB2 has been less demanding compare to EB1 and EB3.
2. Perhaps, there may be a huge demand by ROW (Due to PERM) to consume all the 86% of visa numbers in EB2 category in every month that prompts DOS to allocate only 7% to India and China. I doubt this too, because India and China itself consume about 60% of EB2 visas.
3. There may be lot of EB3 Indians and Chinese with PD 2001 and 2002 porting their PD from EB3 to EB2 by filing new LC and EB2-I-140. This may escalate the demand. However, how many will do this? How many employers will to do this “favor” for their employees? A real US employer/big corporations will not do double time work for an employee. Only consulting/staffing companies will do this. I think this may be a small group (or may not be?).
4. There may be another possible reason. There may be something wrong with U.S.DOS in allocating visa numbers in EB2 category, as per section 202 (a) of current INA. They may be issuing only 2800 (7% of 40,000) visas to India and China in EB2 and redirecting unused EB2 numbers to EB3 category. They may be imposing hard country cap in EB2 (Suspending AC21 law as per their VB Nov 2005). There is a large room for this speculation, due to the pattern of cutoff date movement in EB2 category. This is just a speculation. This argument/speculation is valid if DOS has issued less than 40,000 EB2 visas in FY 2006 as mandated by the law, and issued those numbers (40,000 minus actually issued) to EB3-ROW. In my view, it violates section 203 (b) (2) of the INA. One has to wait till they release statistics for FY 2006, to see how many EB2 visas are issued in that FY.
Here is some detailed analysis that says why it violates the law.
Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 203 a and b of the Immigration and Nationality Act (INA) sets numbers for each preference categories with in FB and EB.
Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. This section also explains how to handle unused numbers with respect to country quota.
Even before AC21 rule enacted in 2000, there was no “hard” country cap as per INA then. Here is the section of INA before year 2000, describes how to allocate unused visas, if overall/total demand for FB an EB visas are less than supply*.
INA 202 (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-Family category) and (b-Employment category) 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”.
Therefore, the 7% country cap had always been “soft” till year 2000.
After year 2000, AC21 has completely removed country cap in each employment category, if excess visas are available in each preference categories.
After 2000 (After AC21) the following law was added to INA in the section 202.
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.
As per my simple interpretation of above AC21 rule, DOS should allocate unused visas by ROW –EB2 (ROW- countries other than India and China in EB2 category) for the first two months of any calendar quarter to over-subscribed countries (India & China) at the third month of that calendar quarter. They should not allocate to lower Preference category (EB3), if demand is more in higher preference category (EB2) to consume all the visa numbers in that preference category. They should allocate visas to all the documentarily qualified applicants in that (EB2) preference category, irrespective of country of birth. If they followed this rule/law, there may be a considerable movement in cut-off dates for India and China in Dec 2005, Mar, June and Sep of 2006 in EB2 (last month of each calendar quarter in a fiscal year). We have not witnessed such movement in last 1.5 years. No one knows how DOS is allocating numbers. They may be allocating only 7% visas to India and China in EB2 category very strictly, every month, and allocating unused numbers to EB3 category, by suspending AC21 law as indicated in their Nov 2005 Visa Bulletin. If they do so, it is against the law, at least in my interpretation of AC21 rule that eliminates country quota in EB categories.
DOS can not interpret above AC21 rule that eliminates per country limit applies “totally” to all EB categories put together, not by individual preference categories. I.e. If they say they will issue more than 2,800 visas to EB2- India per year (more than 7% of 40,000), provided overall demand for EB visas are less than 140,000. If they interpret the law like this, then there is no need for section 202(a) (5) (A) due to AC21 law. The law before AC21 {i.e. section 202 (a) (3)} itself address the elimination of country quota in both FB and EB category*. Then, section 202(a) (5) (A) is a duplicate wording of section 202(a) (3). So, this section of AC21 law becomes a redundant/duplicate law. Then, there is no meaning of employment “preference” category if they interpret “totally or overall worldwide demand”. In other words, a non-Indian/Chinese restaurant cook (EB3) is more preferred than a NIW PhDs (EB2) from India or China. Is it the intend of the congress when enacting AC21 law in removing per country limitation in EB category? Is it the American Competitiveness in 21st century? I highly doubt that.
Now it is the time to ask US DOS, how they are allocating visa number in EB2 category. If DOS interpreting the law differently, then we need to ask the law makers (Congress) what is their original intension behind the section 202(a)(5)(A) when they drafted the AC21 law in 2000 and how it is differ from 202 (a) (3).
Perhaps Core IV team can initiate to discuss/consult this issue with an immigration lawyer and place an enquiry with DOS or Law makers, if needed.
(*Note: DOS do not mix FB and EB categories for visa number allocation/calculation to meet the per country limit. They keep both in separate track to meet separately the 7% limit)
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