Why dates did not move to predicted December 2006 cut-off for EB2-IC?
"Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high."
"Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)"
"INA Section 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an Employment preference, then the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, there will be otherwise unused numbers in the Employment First and Second preferences."
"Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. "
Since EB2-C has not reached it's annual limit (see below), DOS could not use available unused visa numbers to move China with EB2-India (unless it is last quarter where they have to move dates to avoid wastage of annual visa numbers) . This is one of the few reasons that entire "12000 unused visa numbers" was not used for May visa bulletin. At most EB2-I could have advanced to 01 August 2006, same PD as EB2-China. Though (INA) Section 202(a)(5) allows EB2-I to use available spillover but PD cut-off date cannot move beyond that of EB2-C PD.
"Since under INA Section 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates."
"Based on amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country, for the purpose of assuring that the maximum amount of available numbers will be used. Note that a cut-off date imposed to control the use of “otherwise unused” numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit."
DOS just bolstering or justifying their decision of moving cut-off date for EB2-I to 01 July 2006 using "otherwise unused" numbers whereas EB2-C only moved due to it's allocated 233 visa monthly limit.
"For example, at present the India Employment Second preference cut-off date governs the use of numbers under Section 202(a)(5), India having reached its Employment Second annual limit; the China Employment Second preference cut-off date governs number use under the quarterly limit, since China has not yet reached its Employment Second annual limit."
Of all the statements, India has reached it's annual limit is most difficult to digest. We would discuss this in detail below. This could give some indication of EB3-EB2 porting numbers.
"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."
DOS want to ensure that available spillover from all employment preference (EB1, EB2-ROW, EB4 and EB5) should be used for oversubscribed countries in a controlled manner but at the same time does not want to overuse the spillover for one country (India in this case), and thus ensuring that enough visa is available for applicants from other countries, which is yet to reach their per country limit (China, may be South Korea, other ROW countries).
"As mentioned earlier, the number of applicants who may be “upgrading” their status from Employment Third to Employment Second preference is unknown. As a result, the cut-off date which governs use of Section 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of “upgrade” demand in the pipeline while at the same time administering use of the available numbers. "
"This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year. However, it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement."
"Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:
China: none to three weeks expected through July. No August or September estimate is possible at this time.India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time."
Of this entire situation, one good thing is that DOS moved dates only by two months and not by huge amount because we expect EB3 to EB2 porting to be a decent number around 1500 for folks with PD beyond 08 May 2006 and before 2007. This high demand would have overwhelmed DOS and EB2-I could have ended up seeing lesser movement for rest of the fiscal year; greater movement is still a possibility due to ONLY two months advancement. This may be a "Blessing in Disguise" after all for EB2-I.
DOS mentioned that annual limit for EB2 category for India is reached which is still little shocking. There could be two scenarios to it. Lets discuss them in detail here.
a) DOS moved dates for EB2-IC in FY 2010 to 08 May 2006 without considering or (knowing) the real demand for EB3 to EB2 porting and USCIS/DOS were later burned with number of new applications they received that were far beyond available unused visa numbers from FY 2010. So DOS continued to use visa numbers from EB2-I current fiscal year allocation to satisfy demand from previous year in addition to demand from all new EB3-EB2 porting applications post September 2011. In order to avoid retrogressing cut-off dates for EB2-I and to fulfill backlog demand, entire annual visa allocation limit for EB2-I was utilized. Thus DOS wants to be very careful for this fiscal year and would move cut-off dates in a very controlled manner so not to underestimate demand from EB3 to EB2 porting. This suggests that DOS rather be on underside for annual limit and waste few visas rather than underestimating the porting demand and consuming more than annual limit.
Predictions for EB2 in light of new developments
I still have a hunch that 01 July 2007 is a possibility as long as DOS can be little aggressive and we will see decent movement in July visa bulletin.
Again as mentioned before, dates would never become current for EB2-IC to open the gates to build huge inventory for future I-485s .DOS would always moves dates in controlled manner in forthcoming years.
Concerns - Two Fold
- This may a bold statement but it looks like AILA is guiding DOS too much on how to advance Priority Dates than it being vice-versa. All hype of unknown high EB3 to EB2 upgrades has come from AILA. I really doubt EB3 to EB2 porting number is so high and DOS is getting heedlessly so conservative in their approach . The numbers may be high but I am still not convinced. We would know in few months.
- The worry that if dates are not progressed enough in July- August visa bulletin, some visa numbers can go waste which otherwise could be used wisely.
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