US Non-Immigrants Blog - Immigration News Update
27 October 2011
These are many things that are currently happening at the EB category level. We would like to capture our take and analysis in this article.
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Visa Bulletin Predictions from Mr. Charles Oppenheim
Capital Immigration Law Group and others law firms recently met with Charles Oppenheim in Washington, DC. Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State. For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards. He is also the person who prepares and publishes the
monthly visa bulletin which is highly anticipated every month.
Capital Immigration Law Group’s summary from meeting with Mr. Oppenheim’s
Visa Bulletin Predictions – Employment-Based
Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months. Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.
EB-2 Rest of World (ROW). This category is expected to remain current throughout the fiscal year.
EB-2 China and EB-2 India. These two categories are where the most action is going to be over the next few months. Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few visa bulletins. It is possible that the December 2011 Visa Bulletin would advance EB-2 India and China to at least March 1, 2008 or even further. Similar forward movement may be expected in the January 2012 and February 2012 Visa Bulletins. Mr. Oppenheim cautioned, however, that if there is high demand (number of filings) in the EB-2 category, he may hold or even retrogress towards the summer of 2012. He noted that there is usually a 4-6 month gap between filing of an I-485 adjustment application and when a visa number is actually requested and allocated — this means that EB-2 India and China I-485 applications filed in the fall will be need visa numbers in spring/summer of 2012 and this is when retrogression may happen.
EB-3 Rest of World (ROW). This category is expected to move gradually slightly forward for the next few visa bulletins — anticipated forward movement of 3 to 4 weeks per month.
EB-3 China. This category is expected to move slowly forward – by 1-3 weeks per month for the next few months.
EB-3 India. Unfortunately, this category is, according to Mr. Oppenheim, “ridiculously oversubscribed” and forward movement, if any, will be very slow. This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so). This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available. Mr. Oppenheim suggested that since the summer of 2007, no new EB-3 India cases have been filed and there is a significant number of EB-3 India candidates waiting for the priority dates to move forward.
Our take
EB-2 China and EB-2 India.- After such estimation from Mr. Charlie Oppenheim, it is clear that we will see cut-off date of 01 March 2008 or better pretty soon.
Previously this was analyzed in detail
herein, and is now currently summarized below for reference.
"Demand Data for EB2-IC reduced by 5400 compared to last month to account for movement upto July 15th 2007 in October Visa Bulletin. This reduction in demand allowed DOS to move dates to 01 Nov 2007 for the current bulletin. We expect that total movement for this month could bring in 13,976 (inclusive 2,675 from demand data) demand. So far for last two months, USCIS would eventually see demand around 5400+13976 = 19,376 once these applications would convert into documentary qualified applications. Out of these, 8,000 is known demand upto July 2007. As we all know, DOS will not be able to sustain this ready-to-use demand for long time unless it will retrogress dates next visa bulletin or eventually start using quarterly spillover.
I have a very strong feeling that DOS really want to use quarterly spillover, and hence we are not seeing many EB2-IC approvals from TSC yet. So far, NSC is in par with the EB1 and EB2-ROW demand but TSC still have some catching up to do in this regard. Once EB2-ROW and EB1 demand is satisfied, apparently it will be easy for USCIS/DOS to rationalize use of left over quarterly visas as spillover. Mr. Oppenheim clearly mentioned in the visa bulletin that some more significant movement in expected during this fiscal year before he will decide to pull the plug. Total visa demand for EB2-IC that he may have in mind can be any where from 25000-30000 including annual visa quota. We already know 19,376 is already taken care of and atleast 5600 - 10,600 more intake is expected for this year at some point. In terms of cut-off dates this means, we can see January 2008 - April 2008 current anytime.
It is difficult to guess when such movement will happen but atleast 3-6 months total movement in one or two steps is expected. Such movement for December or January visa bulletin cannot be discarded at this time although current bulletin clearly mentioned such movement should not be expected as a norm on monthly basis. Eventually when dates will retrogress, it is expected to reach June 2007 PD in worst case. We still believe for current fiscal year November 2007 will receive green card and December 2007-January 2008 will be on the edge. Individuals with PD from Jan- June 2008 can expect EAD, with June 2008 having slim chance and March 2008 best"
EB-3 (ROW-M-P) - Based on Mr. Oppenheim's estimation and data from currently released October 2011 I-485 pending inventory report, we expect dates for EB3-ROW-M-P to atleast reach PD July 2006-September 2006 in FY 2012. EB3-P demand is high for calendar year 2006 which may restrict cut-off date movement . Realistically, August 2006 is still plausible.
EB3-India is expected to reach 08 November 2002 by end of FY 2012.
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October 2011 I-485 Pending Inventory Released
USCIS yesterday released I-485 pending inventory upto 01 October 2011. 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 quick summary of the I-485 inventory when compared to previous inventories,
EB1 demand : In general, EB1 is highly backlogged with atleast 14072 applications still pending at Service Centers. This is high when compared year-to-year to similar inventories previously released in October 2010 and August 2009. Generally with start of an each fiscal year, such pending numbers were within 5000-8000. This backlog is highly affected by Kazarian Memo and with time can affect spillover to EB2 category if such demand or backlog would continuously grow for rest of the year.
EB2-ROW-M-P demand - When compared to previous some inventories year to year (or quarter to quarter) current inventory for this category stands at least 20% higher. If such demand is maintained for rest of the year, spillover received will be minimum from this category. It is estimated that EB2-IC received atleast 6000 unused visa numbers from this category in FY 2011. At current rate, such numbers can be as low as 1000-2000,
EB2-IC demand - From October 2010 to October 2011, reduction in inventory for this category is 27386. We should note that last year EB2-I used it's annual limit of 2803 just to satisfy porting demand. Adding these two together, we can say 30,189 visas were used alone for EB2-IC; which also matches closely to our estimated (spillover + annual limit) for FY 2011. Estimated worst-case pending PWMB + new porting still pending at USCIS from the inventory is around 4067 = 8965 + 3102 - 8000
EB3- ROW demand - Inventory for EB3-ROW matches closely with demand data last released for November visa bulletin. As mentioned before that year to year inventory for EB3-ROW does not make sense as some so called 'hidden demand' always appear. We will expect to see atleast PD July 2006 for FY 2012 due to high EB3-P demand of 7725 for CY 2006. Please note that CP demand for EB3-P is not included in this inventory. In past such demand were as high as 30% for CP cases.
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. Demand for this category looks 50% less compared to last year. This category should be followed closely for rest of the year. Some spillover may be possible from this category.
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.
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H.R. 3012 approved by the Judiciary Committee and Moved to House Floor
The Fairness for High-Skilled Immigrants Act, H.R.
3012, was introduced by Representative Jason Chaffetz (R-UT) on September 22, 2011 and was approved today by judiciary committee for consideration in chamber. Please see below the steps that bill has to undergo before becoming a law. Bill has currently completed Step 6 (see below). The effect of this bill on different EB categories will be presented once bill is passed and becomes a law.
The bill aims to eliminate per-country visa limits, which are currently causing severe backlogs in green card. As of right now, the Immigration and Nationality Act allows for only 140,000 employment-based visas to be allocated each year. At present, the percentage of visas that can be allocated to any one country is capped at 7% percent of all of the employment-based visas available.
Under the Fairness for High-Skilled Immigrants Act, , the per-country limit on employment-based visas would be eliminated by 2015 after a 3 year phase-in period. During the 3 year transition, the vast majority of Employment Based visas would be allocated on first-in-first out basis in order to eliminate the current backlogs. In FY 2012, backlogged countries would receive unreserved visas - 85% of the visa allocation. In FY 2013 and FY 2014 they would receive 90% of the visa allocations.
H.R.
3012 also increases from 7% to 15% percent the total number of available visas regarding per-country restrictions for family-based immigrants.
How a Bill Becomes Law?
There are potentially 10 steps a bill can go through before becoming a law. Below is a description of each step in the process, using the Genetic Information Non-Discrimination Act of 2003 (S. 1053), as an example.
Step 1: A Bill Is Born
Anyone may draft a bill; however, only members of Congress can introduce legislation, and, by doing so, become the sponsor(s). The president, a member of the cabinet or the head of a federal agency can also propose legislation, although a member of Congress must introduce it.
Step 2: Committee Action
As soon as a bill is introduced, it is referred to a committee. At this point the bill is examined carefully and its chances for passage are first determined. If the committee does not act on a bill, the bill is effectively "dead."
Step 3: Subcommittee Review
Often, bills are referred to a subcommittee for study and hearings. Hearings provide the opportunity to put on the record the views of the executive branch, experts, other public officials and supporters, and opponents of the legislation.
Step 4: Mark up
When the hearings are completed, the subcommittee may meet to "mark up" the bill; that is, make changes and amendments prior to recommending the bill to the full committee. If a subcommittee votes not to report legislation to the full committee, the bill dies. If the committee votes for the bill, it is sent to the floor.
Step 5: Committee Action to Report a Bill
After receiving a subcommittee's report on a bill the full committee votes on its recommendation to the House or Senate. This procedure is called "ordering a bill reported."
Step 6: Voting
After the debate and the approval of any amendments, the bill is passed or defeated by the members voting.
Step 7: Referral to Other Chamber
When the House or Senate passes a bill, it is referred to the other chamber, where it usually follows the same route through committee and floor action. This chamber may approve the bill as received, reject it, ignore it, or change it.
Step 8: Conference Committee Action
When the actions of the other chamber significantly alter the bill, a conference committee is formed to reconcile the differences between the House and Senate versions. If the conferees are unable to reach agreement, the legislation dies. If agreement is reached, a conference report is prepared describing the committee members' recommendations for changes. Both the House and Senate must approve the conference report.
Step 9: Final Action
After both the House and Senate have approved a bill in identical form, it is sent to the president. If the president approves of the legislation, he signs it and it becomes law. Or, if the president takes no action for ten days, while Congress is in session, it automatically becomes law. If the president opposes the bill he can veto it; or if he takes no action after the Congress has adjourned its second session, it is a "pocket veto" and the legislation dies.
Step 10: Overriding a Veto
If the president vetoes a bill, Congress may attempt to "override the veto." If both the Senate and the House pass the bill by a two-thirds majority, the president's veto is overruled and the bill becomes a law.
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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
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.
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.
In general distribution of EB2-IC PERM Ratio for different PD year is as shown below. 
In general, waiting time for Indian nationals in EB2 and EB3 category looks terrible. Since density of applicants per month in EB2-India is so high, that in long run EB2-China will not receive majority of spillover (couple hundred or few thousands). Since EB2 will not be cleared for atleast next 5-6 years, spillover expeccted to EB3 category is minimum. EB3-India will get some indirect- spillover each year due to EB3 to EB2 upgrades or porting which will cause queue to clear faster than anticipated. Individuals with PD close to 2004 -2006 will see ample benefit of this every year. Apparently, if EB2-I will stop receiving spillover or receive minimum spillover in coming years, wait time for EB3-India and EB2-India will end up same. If you will note EB3-India has only 102k estimated demand vs. 165k for EB2-India for PD - March 2011. This whole ordeal is very depressing and visa recapture bill is only hope for EB community. 
