Adjusted EB2-India & China FY 2012 Retrogression Estimation based on I-485 Receipt Data

Based on newly released USCIS Receipts and Approvals for Q1-FY 2012, we would like to adjust the estimation of retrogression for FY 2012 for EB2-India & China Category. This time we were fooled by USCIS January 2012 Inventory which in reality is nothing but a muck of mislaid data. Either USCIS inventory was incomplete in terms of November 2011 and December 2011 to an error of greater than 50% or currently released document has some error. Most likely at this point January Inventory looks incomplete not only with respect to December 2011 visa bulletin movement data but to great extent to November 2011 data. In any case, at this time we feel dejected to outline that we are back to square-one where we started for FY 2012. If any of this is accurate to 80-90%, we are talking about severe retrogression.

Visa Usage or Approvals from the released data 
Currently released data suggests that atleast 31,541 visas were used in Q1-FY 2012. This looks reasonable based on estimated visa use that was published few months ago. 

Estimated EB2-IC visa use upto Q1-FY 2012 is 8000+4805 (PWMB). Also for EB3 category at least 15% or more visa is used by Consular Processed (CP) cases, so monthly visa use is 0.85*3367 = 2861 per month at USCIS. For 3 months it becomes, 2831*3 = 8,493. EB4 could have used 2495 or more in Q1 and EB5 has used 2864 based on released data. Estimated from January Inventory, EB1 and EB2-ROW-M-P use was  around 3,580 and 2321 respectively.
 
Visa use in Q1-FY2012 =  3580 + 8000+ 4805 + 2321+  8493 + 2495 + 2864 = 32,558 (approx 31,541)


EB2-IC Receipts from the released data 
Most disturbing and contradicting to January Inventory data is the total EB category receipts issued in Q1-FY 2012. YTY we had seen that total I-485 EB Receipts at TSC and NSC were 27% - 33% of total I-485 receipts at these service centers. Well current data suggests that when EB2-IC cut-off dates were moved so much in last 6 bulletins, this is no longer true. EB category receipts due to such huge movement now estimates as large as 50%-60% of total I-485 receipts at these centers.

Based on EB receipts for each month as per currently released data, and current trackitt trend for filings in each month for Q1-FY 2012, EB2-India & China demand estimate has almost doubled than what was estimated earlier just because of I-485 EB receipts now representing 50%-60% of total receipts and not 27%-33% anymore. Tabulated results is based on taking EB2-IC trackitt data as it is and assuming EB1 and EB2-ROW-M-P  representation is 1/4th of that of EB2-IC on trackitt. See this article for reference on how this is calculated.

 EB1 and EB2-ROW-M-P estimation above jives well with new applications estimated from January Inventory. Estimation from January 2012 Inventory falls atleast 20% low again because of incompleteness.

One fallacy to above method is that we have not considered any EB3 to EB2 Porting and any new receipts for EB4 and EB5. Based on inventory EB3 to EB2 Porting is not more than 1800, and EB4 & EB5 demand is around 622+223 = 845. Assuming incompleteness of inventory, if we increase this number by 50% more, it comes out to be 845*1.5 = 1267. Though good chunk of EB4 and EB5 cases are CP cases we can ignore it at this point and assume all 1267 were filed at USCIS. Out of new EB2-IC cases, there will be few PWMBs too, which account for these receipts. Such number should be part of October receipts. Considering all these errors, EB2-IC demand for Q1-FY2012 comes out to be 23,787 - 1800 - 1267 = 20720. This is atleast 8000-9000 higher than 11,563 what we estimated from January Inventory. This tells us that January Inventory is totally bogus with respect to EB2-IC demand and should be ignored. Again if these are not EB2-IC numbers then any reduction in here should be accounted by increase in EB1, EB2-ROW, EB4 or EB5 demand, which by all means suggest less contributed spillover to EB2-IC. Based on this March 2008 PD total demand for this year becomes

EB2-IC demand March 2008 =  8000+ 20,720 + 1,800 = 30,520

Now based on current EB1 and EB2-ROW demand, we are estimating that spillover for this year can be as high as 35,500 and as low as 28,800. So it still means June-July 2008 PD can receive green card this FY 2012. My personal opinion is that due to long processing time at USCIS, DOS may not have to retrogress dates all the way to June-July 2008 and then move them again in FY 2013.So this means we can still see October 2008 PD to be current for the remaning fiscal year. USCIS may approve cases more likely on basis of PD than receipt date. EB1 demand will be a gate keeper for this year based on USCIS efforts to reduce this huge inventory. EB2-ROW-M-P demand may yield more spillover compared to last year.

Summary

• USCIS inventory was not indicative of real EB2-IC demand. We were fooled by those low numbers. Current Receipt data suggests that EB2-IC demand upto March 2008 PD is capable to use 30,520 visa numbers.

• PD June-July 2008 should expect Green Card this year with dates still hovering around October 2008 - November 2008 incase DOS decides to avoid severe retrogression and moving dates again in FY 2013.

• PERM to Inventory conversion factor in our

Prediction for EB2 Category for FY 2012 - Employment Based Green Card

Here is the Prediction for EB2 Category cutoff date retrogression for Fiscal Year 2012. Basis for this prediction is simple calculations (see below) which is done based on available data i.e. PERM data published by DOL, I-485 Inventory data, latest trend on Trackitt for EB1 & EB2 cases and other published data by USCIS. Demand data for each dependent category is predicted and explained in calculations below. This data is further used to calculate spillover that would be available for EB2 category. Retrogression is estimated based on visa allotment available each year for each country and total spillover that is expected in FY 2012. In each case, Optimistic, Realistic and Worst-Case scenario is estimated.

Based on newly released USCIS Receipts and Approvals for Q1-FY 2012, we would like to adjust the estimation of retrogression for FY 2012 for EB2-India & China Category. See this article for detail.


Summary of article

• USCIS inventory was not indicative of real EB2-IC demand. We were fooled by those low numbers. Current Receipt data suggests that EB2-IC demand upto March 2008 PD is capable to use 30,520 visa numbers.

• PD June-July 2008 should expect Green Card this year with dates still hovering around October 2008 - November 2008 incase DOS decides to avoid severe retrogression and moving dates again in FY 2013.

• PERM to Inventory conversion factor in our

EB2-IC PERM to Inventory factor is a User ENTERED' field and can be changed accordingly. 


You can also play with EB1, EB2-ROW-M-P, EB4 and EB5 demand to get your own estimate. Please read this article to estimate their respective demand.

Estimation on Retrogression - Last Updated - 26 February 2012

We do not expect to achieve any spillover from Family-Based category.

Detailed analysis on Visa Demand data for each category could be seen below in the calculations.

You can enter porting and visa demand for each category in 'User ENTERED' box for your Priority date, and see if your PD would be current with those assumptions.

This Prediction will be updated as and when more data is published - Last Updated 26 February 2012

Notes

Understanding Spillover

Spill Across (SA): It is a horizontal reallocation of visas within a category. (Unused number from EB2 ROW will be allotted to EB2 -India and China)

 

Fall Down (FD) : It is the vertical reallocation of visas between categories (eg: unused numbers from eb1 go to eb2....) Unused visa numbers in a higher preference level can "fall-down" to lower preference categories. For example, excess EB1 numbers can "fall-down" to EB2.

Fall Up (FU): Unused visa numbers in EB4 and EB5 can "fall-up" to EB1 then to EB2

EB2 - India-China Allocation (IC) - Visa numbers allotment to India and China EB2-category. This is 2,800 for each country or total 5,600.

How spillover works?

Unused EB4 and EB5 => EB1 => Unused EB1 => EB2 ROW => EB2 Retrogressed

Visa Allocation available each year

EB1 - 40,000

EB2 -ROW-P-M - 34,400

EB2-IC - 5,600

EB4 - 9,940

EB5 - 9,940

Calculations

January 2012 I-485 Pending Inventory - EB Category Visa Use

USCIS released I-485 pending inventory upto 12 January 2012. Please note this inventory is only for Service Centers and Field Offices, and does not contain consular processing cases. Dependents are included. Here is a summary of the I-485 inventory when compared to October 2011 Inventory. This inventory is used to estimate the visa use during Q1 of FY 2012 and Projected Demand for FY 2012.Please note that one fallacy to using inventory to estimate demand is that it will not consider cases approved in less than 90 days.

EB1 demand : In general, EB1 is highly backlogged with atleast 15,583 applications still pending at Service Centers. Although this number looks big at first glance please do not worry. This is just a backlog that USCIS will need to clear going forward. Rate of new application filings is very low and we can estimate at least 12,000 or more spillover from this category at current rate. This may change with time. It all depends how much USCIS will like to reduce it's inventory when crossing into FY 2013. Generally such number is around 8,000 year-to-year, and we have used this number to estimate our projected EB1 demand for FY 2012.

EB2-ROW-M-P demand - This category demand is little surprising at first. I am not sure if new demand is so low but we should remember that other significant demand for this category also comes from consular processed cases. Such demand is usually around 15%. Estimated Demand shown is only for USCIS and Field Offices. Usually year to year inventory for this category ends around 8,000 -10,000. We assumed 8,000 in our calculations.

If we will add 15% to the estimated demand, we can say that estimated FY 2012 EB2-ROW-M-P demand is around 1.15 * 22,379 = 25,735. From EB2-ROW-M-P, we can expect spillover around 34,200 - 25,735 = 8,465 or more

EB3-ROW-M-P demand - Visa use for for EB3-ROW-M-P is estimated from October 2011 to January 2012 inventory. Please see below.

 One thing to note here is that only 5,042 visa numbers were used by EB3-ROW-M-P at USCIS. Total visa number available for 3 months is around 8,682. Remaining 3,640 were used by consulates abroad. This demand is around 40% for CP cases.We are still marching towards 08 August 2006 for this category.

EB2-IC demand - This section of the article will only cover EB2-India and China demand till PD July 31st, 2007. This demand is all inclusive of visa numbers that are/will be used upto this PD for current fiscal year (FY 2012). Demand from October 2011-January 2012 inventory estimates visa number used until Q1, cases still waiting for visa numbers and new EB3 to EB2 porting cases. Remaining demand after PD July 2007 is covered in "Predictions for EB2-India & China FY 2012".

Just based on inventory it seems that only 7,795 visa numbers were used in Q1-FY 2012. Total PWMB numbers are also very less compared to what we initially thought. PWMBs includes all PDs from May 2006- July 2007 (June VB-November VB) that are still pending since October 2011 inventory. Visa use for such cases will come from this year's quota. These 14,430 demand will be limiting factor for current year cut-off date on retrogression. Retrogression will be estimated is next article.

EB3- India - Inventory for EB3-India compared to last fiscal year reduced by 4884 (2803 annual limit + 2081 estimated porting and/or case abandonment upto January 2003). Minimum movement around 08 November 2002 is expected. Movement can be little more if more folks from November-December 2002 will port for this year.

EB4- demand - Last year, EB4 demand was high or at par, and hence no spillover was received from this category. For this year also we may assume that no spillover will be received.

EB5- demand - EB5 demand is similar level as last year and may yield around 3000-4000 unused visa numbers if similar demand is seen in FY 2012.

EB2-India & China I-140 Demand (Yearly) based on DHS Released Report

DHS on 29th December 2011 released a Citizenship and Immigration Services Ombudsman's recommendation to improve the quality in Extraordinary Ability and Other Employment based petition adjudication document (thank you to our reader who pointed to this release) - http://www.dhs.gov/xlibrary/assets/cisomb-recommendation_extraordinary_ability_petitions.pdf.

Some of the important relevant information can be found on Page 6 of the document which has plots for I-140 EB1 and EB-2 adjudications, including receipts and approvals for the Texas (TSC) and Nebraska (NSC) Service Centers. Report suggests that USCIS has experienced a slight downturn in EB-1 and EB-2 filings over the past five years for both EB-1 and EB-2 (note report does not include National Interest Waiver petitions), with approval and denial rates remaining consistent.

Key point to note here are - 

• EB1-A and EB1-B has high rate of denial rate, around 40% to 60% respectively. 
• EB2 I-140 approval rate is close to 100%
• Respective I-140 filings for each fiscal year 2008, 2009, 2010 and 2011.
• EB1 majority demand comes from EB1-C and not from EB1-A and EB1-B. Those filings do not look enormous.

Based on I-140 receipt data  and 100% approval rate for EB2 petition, we tried to deduce some I-140 demand for PD 2008, 2009 and 2010.

EB2-India & China I-140 Demand based on released data

First of all we started after taking into account the PERMs that were approved for the FY 2008, FY 2009 and FY 2010.

Table I

We know from past analysis that usual break down of PERMs are 65%-35% for EB2-EB3 for India and China, and 50% for EB2-ROW-M-P.  Based on this assumption and 100% approval rate, total I-140 demand for PERMs filed each fiscal year as follow.

Table II

 If we now compare this data with recently released DHS document -http://www.dhs.gov/xlibrary/assets/cisomb-recommendation_extraordinary_ability_petitions.pdf. ; then I-140 Receipt numbers come very close to that suggested in above table. Approvals per released DHS document is as follow:

Table III

Reason for difference in two numbers can be accounted based on

• First of all data is based on PERM approvals and some of demand from past fiscal year will roll-over into current fiscal year I-140 demand due to time lag between approval of PERM and filing of I-140s
• Our assumption of 65% and 50% is flat and there may be a difference month to month.
• Please note NIW applicants do not have to file PERM and hence that difference in negated here. 

In addition to above numbers we should remember that lot of PERM cases that were filed with PD 2008 and PD 2009 were audited  and were later approved in FY 2011. Few cases were approved in FY 2010 but we will neglect it for time being. If we will look at the EB2-IC and EB2-ROW-M-P breakup for FY 2011, we can see demand from PD 2008 and PD 2009 that will come from approvals in FY 2011.

This data comes from these articles
a) FY 2011 Q1-Q2 PERM data
b) FY 2011 Q3 PERM Approvals
c) FY 2011 Q4 PERM Approvals

Table IV

 Please note that from above table it is difficult to deduce EB2 I-140 Receipts of 39000 reported in DHS document. Our estimation only shows 21,034 receipts. This is still a mystery to us.

EB2-India & China demand based on Priority Date
To calculate this for now we can neglect the difference that we see in DHS I-140 Receipts data (Table II)  and I-140 demand data from PERM approvals (Table III), then we can roughly estimate total EB2-IC I-140 demand for each fiscal year just by using Table II. In order to capture FY 2011 approvals for old priority dates, we will add EB2-IC demand for each fiscal year to respective approvals in FY 2011. Based on above calculations, estimate for EB2-IC I-140 demand is  (in red)

Table V

Some key points to note

•  I-140 Receipt demand will always lag PERM Approval times.
• Difference between 29000 - 27588 = 1412 from Table II and Table III can account for some demand before October 2007.
• It is assumed that most of the cases for certain priority date is approved in same fiscal year, so total demand upto end of FY 2010 will be same but real numbers for each  PD may be off depending upon PERM approval time within that fiscal year.
• These calculations do not consider any abandon cases due to individuals leaving country, getting lay-offed or re-filing due to long audit processing time, multiple PERM factors or double filings within a family. You can assume anything from 65%-85% for this as a multiple PERM factor.
• This data does not consider any EB3-EB2 portings.
• You can multiply this demand by 2.0 to 2.25 based on dependent factor to get estimate of I-485 demand.

 EB2-India & China I-485 demand based on Priority Date

 To above numbers you can add 8000 visa numbers that was approved for this fiscal year. Also add demand from August 2007-September 2007 plus 4000-5000 PWMBs overall and then based on your estimation of spillover calculate cut-off date on retrogression.


My take will be the option Multiple PERM factor of 75%.
EB2-IC demand , August-September 2007 from PERM data = 4,000
All PWMBs =                                                                             4,500
EB2-IC Approvals for backlogged cases =                                8,000
Demand until Sep 2008 =                                                         25,233
__________________________________________________________

Total I-485 Demand upto September 2008 =                           41,733 

Spillover + annual limit expected at most can be around   28,000

Cut-off Dates for this year can hover around March-June 2008 after retrogression for the best scenario.

EB2-IC Visa Bulletin Movements FY 2012 - Is this how Mr. Oppenheim thinks?

We looked into if there is any analytical correlation between movements that Mr. Oppenheim did last year for Family Based Category (F2A) and current movement that we saw with EB2-India and China for Employment Based Category. Is there any correlation or equation or factor that can determine how Mr. Oppenheim would think in absence of demand or visible demand in case number of filings that he is receiving or available adjudicated case cases are less? Or if we can formulate a mathematical expression that outlines his approach to move dates. That is when we started digging into this.

Edited - December 20, 2011

We started looking at the movement that Mr. Oppenheim did for Family-Based Category last year in FY 2010 and FY 2011 to see how he moved the dates and then retrogressed them once he had enough demand. Some key difference that should be noted between two categories are a) annual visas for FB category vs EB category is 260K vs. 140K. When one will reduce these numbers per category, ratio between two visa numbers would be quite similar b) For FB category demand could be easily generated in couple months as long as NVC have enough cases documentarily qualified (majority of demand in FB category comes from overseas consular posts) vs. EB category which rely mostly on USCIS to generate demand. C) Mr. Oppenheim started doing such movement for FB category in June 2010 which was still recalibrating until last fiscal year.

Mr. Oppenheim started doing similar movement of EB2-IC from October 2011. If we will assume that Mr. Oppenheim have similar thought process that he had while determining cut-off dates for FB category, then we should have seen movements as suggested in the column “EB2-IC”. But this was the not the case. Factors a) to c) could be the reason for this. As two categories have different demand and different annual visa numbers, movement could not be just purely based on similar difference. We took first two movements that we saw in the last visa bulletin to fit the best correlation to the data, and equation we received was

Recalibrated EB2-IC Movement

It should be noted that there is a correction in the equation. As forward movement will be less based on factor a) to c), even retrogression should be less than anticipated compared to FB category.

Forward Movement

EB2-IC Date:Current Bulletin = EB2-IC Date:Last Bulletin + (((F2A Movement: Current Bulletin - F2A Movement:Last Bulletin)*140000/260000) – 60 days)

Retrogression

EB2-IC Date:Current Bulletin = EB2-IC Date:Last Bulletin + (((F2A Movement: Current Bulletin - F2A Movement:Last Bulletin)*140000/260000) +60 days)

This equation closely satisfied movement that we saw for December 2011 and January 2012 Visa Bulletin. We used this data to correlate Mr. Oppenheim thought process in order to extrapolate movement for next few bulletins; as long as he will continue to have same thought process for rest of the year.

Fallacy to above method, it does not take into account any EB demand, PERM numbers and assumes similar correlation will exist for rest of the year. Personally, I would request everyone to take this lightly and do not put lot of eggs into this basket. The correlation when outputted was very interesting hence we thought of sharing it with our readers, especially when there is no logic behind current movement (as far as I can tell). It can give better perspective to this process than just going by a gut feeling.

If this will make sense, and will start panning out in next few bulletin then cut-off dates estimated by equation does not make sense from June 2012 – November 2012, I would say in case spillover is enough, dates may stick around December 2008 until June 2012 and then retrogress to September 2007 in August-September 2012 for some time. By this time most of the folks should have received green card from the filings in October-December 2011. Successively dates will move back to June 2008 in October 2013 or beyond. In all, I would not care about movement shown in later half of the table.

Note : Results here are independent of demand and were shared because they looked interesting. By no means this suggests that this is what we may see in next visa bulletins.

EB2 India & China - What to expect in FY 2012? - (Post Sep VB)

Cut-Off Dates has reached PD 15th April 2007 for EB2-India and China for FY 2011 in September bulletin, now what can we expect for FY 2012?

What movement do we expect for EB2-IC in FY 2012? 

Since now we know that EB2-India and China are stuck at 15^th April 2007 for this fiscal year, we can try and estimate what we can expect for this category in FY 2012.

Eb2-India and China still need 8000 more visas for EB2-IC to cross PD 15 August 2007. This is calculated plainly from the currently released visible demand data, without including 'People Who Missed the Boat" (PWMBs) during July 2007. Expected PWMB until 15 August 2007 cut-off date from September Visa bulletin cut-off date of 15 April 2007 are 8302. We firmly believe any PWMBs before July visa bulletin cut-off date of 08 March 2007 have good chance to get approved by September 30 or even in October, where USCIS usually tend to use some unused visa numbers from the last fiscal year.

So out of total PWMBs of 8,302 for EB2-IC until 15 August 2007, even if we assume that due to the economic recession and other unforeseen reasons, only 50% are eligible to pursue this, numbers still come out to be 4,151. So to sum up, without even crossing EB2-IC PD of July 2007, for next fiscal year EB2-IC has demand of 8,000 + 4,151 = 12,151.

Now we know as and when these PWMBs will become current and file for I-485 in order to become documentarily qualified, by that time we will be in Q2 or beyond for FY 2012. Based on annual limits and not considering any PWMBs, expected movement for EB2-IC is as tabulated below. This is based on no porting and no PWMBs. 

For EB2-India, movement will be very small or expect no movement for first quarter (Q1) and then in Q2 we can expect 1 week movement each month until DOS will try to intake extra inventory in Q3. EB2-China will progress much quicker than EB2-India. For EB2-China we can expect 4 weeks in Q1 and Q2 each, until DOS will allocate any extra movement to intake inventory for spillover season.

EB3-EB2 Porting and PWMBs before 15^th April 2007

Above tabulated estimation can all change, especially for EB2-India, if individuals in EB3 category with PD before 15 April 2007 will start porting. We expect EB3 to EB2 porting for FY 2012  will be at same level as FY 2011. Expected numbers should not be more than 2,800. Other than these porting numbers we should also consider calculated PWMBs before 15^th April 2007, which are 1,958. Again assuming that out of these only 50% are still eligible, this number comes out to be around 979. Out of these we expect 50% or more will use visa numbers from FY 2011 quota. So rollover backlog to FY 2012 will be 488.

So EB3 to EB2 Porting and PWMBs before 15 April 2007 that would be counted towards FY 2012 becomes 2,800 + 488 = 3,288. Of course, porting demand will be realized slowly and hence we can expect little but small movement for EB2- India. Movement depends on PWMB rollover and new porting demand. EB2-China should continue to move as outlined above as we expect no porting, and we expect FY 2011 rollover PWMB demand to be around 150 or less.

What will be the total demand for FY 2012 and how much spillover is required to cross 2007?

So now going back to total demand for FY 2012 as calculated above up to 15 August 2007 and adding demand for PWMBs up to cut-off at that time (4,151- 2,803 = 1,351) assuming dates around 01 June 2007), porting and rollover PWMBs and removing annual limit, (5600) total demand required to cross PD July 2007 (see large font numbers above)

8,000 +1,351 + 3,288 + 150 – 5,600 = 7,189

Total demand of 7,189 will be enough to keep DOS from worrying about taking any new inventory until April 2012. Once year will progress into early Q3, just like this year DOS may start looking into half yearly projected demand for EB1 and EB2-ROW. If at this point, annual visa limit for the EB2-IC (or any of the country) is exhausted due to above stated demand, DOS will start looking into using any available unused visa numbers. Although, DOS/USCIS are constrained to use only 30% of these numbers in first three quarters (but they made exception this year), this move would totally depend upon number of visas available.

If DOS feel there is more than 7189 unused visa numbers that they can expect based on past number use; estimates of future number use and return rates; and estimates of Citizenship and Immigration Service demand based on cut-off date movements (quoted from our previous article), they will plan on taking extra inventory to make I-485 cases documentarily qualified for rest of the fiscal year.  Usually past trend has been around 3000 visa numbers each month for EB2-IC. 

So if expected spillover from half-yearly unused number is 10,000, they will try to intake for 18,000 or less, thus EB2-IC movement will be based on 18,000 – 7,189 = 10,811, thus crossing only 4-5 months from July 2007 at most at first trial and error. If after this movement, in case DOS would see change in demand pattern then they can try to retrogress dates or progress dates in July 2012 (Q4). Next fiscal year ,spillovers can either be used on a quarterly basis or we can expect some big movement in April 2012 and then second recalibration in July 2012.

If first trial and error would cause dates to move until PD December 2007 in early Q3 of FY2012; based on our estimation it will bring 11,664 EB2-I applications; 2,109 more EB2-C application; and  2803 new PWMBs post 01 June 2007 that were not considered above. These EB2-IC numbers comes from PERM data after applying I-140 conversion factor of 78%. After applying this, if we consider most optimistically due to economic recession or other unforeseen reason only 75% are eligible to pursue this anymore, total demand from Aug 2007 until December 2007 becomes  – (0.75 x (11664+2109)) +2803 = 11912 + 2803 = 14715.

Based on above 18,000 spillovers, 10,811 left after July 2007 would only take EB2-India and China to end of November 2007, and dates could retrogress from December 2007 in July 2012 . If we expect next year’s spillover will be same as this FY 2011 (very unlikely), and we will receive 25000 unused visa numbers, EB2-IC in FY 2012 will end up around January 2008. In reality dates can be anywhere between December 2007 to January 2008 for FY 2012.

It should be noted in above scenario I-140 to I-485 conversion is assumed 75% and PWMBs are assumed 50% eligible.

Now final question is if dates will retrogress or move forward after first huge movement in early Q3 for next fiscal year?

We are really hoping that DOS/USCIS should use quarterly spillover than half yearly spillover for next fiscal year. But Mr. Oppenheim being conservative in nature will move dates only in early Q3 around April 2012 and then recalibrate in July 2012. Dates retrogressing or moving forward will totally depend upon EB1 and EB2-ROW demand.

Do we expect retrogression in Q1 for EB2-I?

No, we do not expect retrogression for EB2-I in Q1 FY 2012. In case if that will happen, it will not be more than a month. Chances are very less.  

Predictions for EB2-IC for FY 2011 - Updated 1st May 2011

We have updated predictions for EB2-FY 2011 for Employment Based category based on new EB2-ROW Demand, PWMB data gathered from PERM data and our EB2-EB3 porting calculations. This is it from us until August visa bulletin unless we will get some updates from Mr. Charlie Oppenheim in meantime.

Predictions for EB2 Category for FY 2011 - Updated 01 May 2011

EB2 Category will see atleast 12,000 Spillover from EB1 for FY 2011

As per recent statement by Mr. Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, it appears that India EB2 cutoff dates will advance, perhaps substantially, in May. This means that China EB2 cutoff dates will also advance with them.

Mr. Oppenheim said “[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

Statement in red could be read in two ways

a) This means bare minimum 12000 will be available for entire fiscal year based on current indication or trend.
OR
b) This means 12000 visa numbers are available from EB1 right now and we can expect 24,000 unused visa numbers for rest of the year.

On a conservative side, I would think at least 12000 unused EB1 visa numbers will be available for spillover for the entire fiscal year. Apart from this we could also expect spillover from unused EB4, EB5 and EB2-ROW-P-M category later in the last quarter.

But contradictory to a) is the statement published on the other website which suggests "The Department of State announced that the Indian EB2 category is expected to advance one week in the May Visa Bulletin. The demand for EB1visa numbers has decreased by 50 percent this fiscal year. Last year from October 2009 to February 2010, 22,000 EB1 numbers were used. During the same period this year, only 10,000 to 11,000 have been used. EB1 will be current worldwide all fiscal year. This will free up an estimated 12,000 visa numbers to fall down from EB1 to EB2 this year."

Please ignore the statement on movement by only one week, which seems little too unrealistic. If we closely look at statement in red, this suggest at least 18000 spillover from EB1 to EB2 category this year.

Based on above two scenarios, a) and b), we will update our "May visa Bulletin Prediction" and "Prediction for EB2 Category for FY 2011".

Indeed this is a good news for EB2-India and China applicants who are waiting for some visa numbers for long time.

The Employment Based Green Card Process And The Dramatic Negative Impact Of Country Based Quotas On Persons of Indian and China Origin

United States immigration laws are preventing many of the most talented immigrants in the world from migrating to the United States. On January 10, 2010, the United States Citizenship and Immigration Services (USCIS) released new data confirming that some prospective highly skilled immigrants from one country – India – may have to wait as much as 35 years to get a green card, unless Congress takes steps to change the current nationality based visa quota system and increases the annual quota.

Under the Immigration and Nationality Act (INA), 140,0001 employment based immigrants, inclusive of spouses and children, may migrate to this country annually in one of five general categories.

First Preference Employment Based Immigrants (EB‐1) : This category is for Priority Workers and is limited to 40,000 visas each year (28.6% of the worldwide employment‐based preference level). Any unused visa numbers from the EB‐4 and EB‐5 categories may be added to this quota. 15, 184 workers and 21,494 spouses and children immigrated under this category in FY 2008, which is the latest available detailed data.

Second Preference Employment Based Immigrants (EB‐2): This category is for workers in professions holding advanced degrees or persons of exceptional ability. The number of visas available annually in this category are 40,000 (28.6% of the worldwide employment‐based preference level), plus any visas that are not used in the EB‐1 category. 34,535 workers and 35,511 spouses and children immigrated under this category in FY 2008.

Third Preference Employment Based Immigrants (EB‐3): This category is for skilled workers, professionals, and lesser skilled workers referred to as "other workers: The annual limit for workers in this category is 40,000 (28.6% of the worldwide employment‐based preference level), plus any visas that are not used in the EB‐2 category for that year. However, no more than 10,000 visas can be allocated to the lesser skilled "other workers" in this category. 20,596 workers and 28,303 spouses and children immigrated under this category in FY 2008.

Fourth Preference Employment Based Immigrants (EB‐4): This category is for certain special immigrants such as religious workers, certain long‐time employees of the U.S. government, citizens of Iraq or Afghanistan that have worked for the U.S. Armed Forces as a translator for at least 1 year, some physicians who have residence in the U.S. for a number of years, juvenile dependents of a court who are eligible for foster care, some dependents of diplomats and others . It is limited to a maximum of 10,000 visas per year (7.1% of the worldwide employment‐based preference level). 5,164 workers and 4,346 spouses and children immigrated under this category in FY 2008.

Fifth Preference Employment Based Immigrants (EB‐5): This category is for investor immigrants who create employment . It is limited to a maximum of 10,000 visas each year (7.1% of the worldwide employment‐based preference level). 427 workers and 922 spouses and children immigrated under this category in FY 2008.

The employment based categories are further restricted by country of nationality, and no more than 7 percent of each category can be allocated to any single nationality. Thus, no more than 2800 visas may be initially allocated to a single nationality group in each of the first three categories. Similarly, no more than 700 visas in each of the last two categories may be awarded to nationals of any single country.

This seemingly arbitrary across‐the‐board limitation has proven disproportionately disadvantageous to visa applicants from more densely populated countries. For example, under this formula, the maximum number of visas allotted to nationals of China and India, each with a population of over one billion citizens – is the same as that for nationals from smaller states such as Nauru with a population of 10,000 or even the Vatican, which has a population of only 800 citizens.

In recent years, there have been times when the total number of available visas in a particular category have not been entirely allocated. When this happens, these unused visas become available to oversubscribed countries such as India and China. The complex numerical allocation system cannot be fully explained here. The Department of State has a detailed explanation of this process at its website http://www.travel.state.gov/pdf/Immigrant%20Visa%20Control%20System_operation%20of.pdf . In 2000, Congress passed legislation which allowed the use of approximately 130,000 unused visas from the 1999 and 2000 fiscal years to be used in future years when the 140,000 annual limit was reached. This allowed additional visas to be issued in the EB‐2 and EB‐3 categories. The following chart shows the number of immigrant visas (green cards) allocated worldwide on an annual basis as well as the immigrant visas issued to Indian and Chinese nationals in the two categories that are oversubscribed – EB‐2 and EB‐3:

For the past seven years, in my role as the nation's first Citizenship and Immigration Services Ombudsman and subsequently as an immigration attorney in private practice, I have requested from USCIS the data on the total number of pending employment‐based cases by category, priority date, and country of chargeability. Common sense dictates that USCIS would maintain and monitor such statistics in the course of performing its core immigration functions. Without this data, USCIS would appear to be violating the very basis of the law that established the numerical limits on employment‐based immigrant visas. The responses to my queries have been disheartening at best.

In August 2009 USCIS released a report that, for the first time, publicly revealed some of this important data that I had been requesting since 2003. On January 10, 2010, USCIS released an updated version of the data. USCIS has acknowledged that it has not included all the data since its systems do not allow it to do so. The data excluded some pending cases for which visa petitions had not been approved, even though USCIS accepted the I‐485 applications concurrently. USCIS also excluded applications pending at field offices, which are apparently on a different database system, and excluded the pending cases with the Department of State's National Visa Center (NVC).

DOS recently released data on pending cases at the NVC. The combined data paint a bleak picture for EB‐2 and EB‐3 applicants. However, for Indian and Chinese nationals, the news is even worse.

The following chart shows total combined pending number of employment based visa applications pending at the two USCIS Service Centers based on the Jan 10, 2010 report as well as the number of employment based visa applications pending at the Department of State's National Visa Center:

As pointed out earlier, Table 2 reflects the estimated total number of pending applications for employment based immigrant visas based on the available data. USCIS has always insisted that the data from the two service centers reflects most of the applicants. However, in a strange twist of events, on January 28, 2010, the Department of State provided the author with data on visa requests from various USCIS offices including the two service centers. The data reveals that during the first four months of the fiscal year, USCIS service centers requested 4,200 employment based immigrant visas while district (field) offices requested 8,400 employment based immigrant visas. This suggests that field offices may have many more pending cases than USCIS has previously represented. If USCIS has a large number of employment based immigrant visa applications pending at the field offices, as indicated by the visa requests from field offices in the first four months of this fiscal year, the ominous predictions for the estimated number of years to process the EB‐2 and EB‐3 cases for India and China could rise dramatically.

On February 3, 2010, the Department of State released the current pool of visa applicants and documentarily qualified applicants for whom USCIS has already requested a visa number. The following charts, Tables 3 & 4, replicate the charts published by DOS and confirm the information provided above. It should be noted that this set of numbers includes all visa applicants waiting abroad and registered with the NVC and also includes a portion of the current pending applicants at USCIS Service Centers shown in Table 2 and some additional USCIS pending applicants at USCIS field offices. Unfortunately, neither USCIS nor DOS have been able to reconcile and account for the numbers reported by USCIS into the DOS database. For applicants, their lawyers, researchers and anyone else reviewing the data, including Congress, this situation presents an environment where there is no ability to hold the government agencies accountable for their actions or inactions in this area since data can be manipulated without regard to legislative requirements:

The data in Table 3 and Table 4 is used to set the monthly visa priority dates which is the official process by which the visa quotas are allocated. The monthly Visa Bulletin and a more complete explanation of the Visa Bulletin can be accessed at http://www.state.gov/ .

Solution
The immediate solution is full accountability of all pending applicants for employment based immigrant visas both at USCIS and DOS. Without accurate data, it is difficult to hold the agencies accountable for their actions or inactions.

Another solution is to "recapture" lost visas. Between 1994 and 2006, USCIS underutilized the visa numbers by approving less than the 140,000 employment based applications each year even though USCIS had more than enough applications pending. Due to the statutory calculation method (explained more fully by USCIS and DOS on their websites), USCIS's failure to timely process a sufficient number of applications resulted in the loss of approximately 349,000 visa numbers that could not be used in future years since the law prevents usage in future years. In 2000, Congress authorized the use of 130,000 these "lost" visa numbers by what has come to be known as the "visa recapture" method. However, approximately 219,000 numbers have not been "recaptured". The current worldwide pending cases in all employment based categories is approximately 340,000 applicants. A one‐time recapture of the 219,000 unused visa numbers could go a long way to eliminating this backlog and bringing much needed relief to many applicants who currently face the prospect of becoming residents of the United States after they retire.

The most important solution is resolving the nationality based discrimination built into our immigration laws, especially with regards to attracting the "best and the brightest" talent regardless of nationality. Congress must act now to end this nationality‐based discrimination against would‐be immigrants. Stakeholders in this issue — including U.S. employers in need of highly skilled workers— should let their lawmakers know in this election year that such discrimination is no longer tolerable. It is time to remove this blemish from our immigration system.

It is imperative that lawmakers review these ominous statistics. Congress needs to take action to remedy this problem. The problem was caused in part by inefficiencies and lack of accountability at USCIS and its predecessor agency, the Immigration and Naturalization Service (INS); in part by the failure of two agencies, USCIS and DOS to cooperate and share data; and, in part by the national origin based discriminatory statute, which is having an unintended effect of preventing tens of thousands of the most talented individuals from equally competing for visas that should be given to those that this country most needs rather than by discriminating based on national origin.

- By Prakash Khatri

Fakhoury Law Group

Prakash Khatri has a national Immigration Law practice based out of Washington, DC. He has been practicing law for more than 25 years. He is a nationally recognized expert on Immigration law and process. He is also the President and CEO of KPK Global Solutions, LLC, a consulting firm specializing in strategic-level immigration issues and is "of Counsel" to the Fakhoury Law Group.