March 2011 Visa Bulletin Predictions - EB category

March 2011 Visa Bulletin will be out soon. Here is the prediction for March 2011 Visa Bulletin. We should see following movements in each category as long as USCIS/DOL would allocate visa numbers to each category to utilize their half yearly quota.

Predictions

• EB3- China and EB3-Philippines could advance by almost a year.
• EB3-Mexico could advance to February 2004.
  
• EB3-ROW could advance to August 2005.
  
• EB2 will be current for ROW, Mexico and Philippines.
  
• EB3-India could advance by a month.
  
• EB2-India would not see any movement.
  
• EB2-China could advance by two weeks.

Prediction for EB2 Category for FY 2011 - Employment Based Green Card

Here is the Prediction for EB2 Category cutoff date movement for Fiscal Year 2011. Basis for this prediction is simple calculations (see below) which is done based on available data i.e. visa statistics recently released for CY 2010, PERM data published by DOL for CY 2010, latest trend on Trackitt for 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. Dates are predicted based on visa allotment available each year for each country and total spillover that is expected in FY 2011. In each case, Optimistic, Realistic and Worst-Case scenario is predicted.

New Predictions - Last Updated - 01 May 2011

We have added new sections for PWMB and Porting under calculation. Please use our reference mentioned in the PWMB section to calculate total visa based on August visa bulletin cut-off date. We should only consider demand due to porting and PWMB upto August visa bulletin cut-off date for predicting EB2-IC movement for FY 2011. Any demand after August visa bulletin cut off date will not affect EB2-IC movement for this fiscal year. Please assume "August visa bulletin" cut-off date and calculate PWMB and assume Porting numbers based on our calculations. These field are User ENTERED only.

Our worst-case scenario is based on 28,000 unused EB1 visa numbers and EB2-ROW-M-P demand of 30,600. For our worst case scenario we expect August Visa Bulletin to reach cut-off date of 1st November 2006. As per these assumptions EB2-IC PD dates would hardly reach 01 January 2007.

Our realistic scenario is based on 24,000 unused EB1 visa numbers and EB2-ROW-M-P demand of 28,600. For our realistic case scenario we expect August Visa Bulletin to reach cut-off date of 1st November 2006. In this case, EB2-IC PD dates would reach 08 March 2007.

Our optimistic scenario is based on 20,000 unused EB1 visa numbers and EB2-ROW-M-P demand of 26,600. For our optimistic case scenario we expect August Visa Bulletin has to reach cut-off date of 1st January 2007. This bring more porting numbers. In this case, EB2-IC PD dates would reach 01 June 2007.

All these assumptions is based on receiving atleast 5974 unused visa numbers from EB5. Any huge reduction in number will make dates moving difficult. In this cases dates will hardly cross December 2006.

This is it from us until August visa bulletin. Good Luck.

New Predictions - Last Updated - 04 April 2011

Based on currently released statement by Mr. Oppenheim on 12,000 available unused visa numbers from EB1 category to EB2 for FY 2011, we are revising our Predictions for EB2 Category for FY 2011. We are reporting worst-case, realistic and optimistic scenarios for our predictions.

Realistic prediction (01 July 2007) is based on availability of atleast 16,000 unused visa numbers from EB-1 category. We are convinced that EB3-EB2 porting number predictions for individuals with PD before 08 May 06 is not more than 4500. We will stick to our predictions for EB2-ROW, EB4 and EB5 consumption unless we see different trend for rest of the year. Based on all these predictions, EB2-IC dates will progress to 1st July 2007 for FY 2011.

Worst-case (01 April 2007) would be seen only if 12000 unused visa numbers are available from EB1-category, and EB3-EB2 porting numbers would rise to 6000 due to introduction of new porting cases as and when dates would become current for post 08 May 2006 PD; especially if we see huge movement for May visa bulletin. This would give USCIS enough time to consider addition of these new petitions to count them towards available spillover. This jump of 1500 visa numbers to porting would also be used to offset addition of application from petitioners who had originally missed the boat during July 2007 fiasco.

Optimistic movement (01 October 2007) would be seen if EB1-category would yield 20,000 unused visa numbers. We do not predict dates to become current for everyone during FY 2011. If USCIS would not have enough buffer to predict movements for EB2-IC f post July 2007 for FY 2012, dates might move beyond October 2007 by 5-6 months during first quarter of FY 2012.

Predictions that were as of 03 Feb 2011

There are good chances that the dates for EB2-India and China would progress to 1st January 2007 as long as we would see EB-1 demand to be reasonable (around 34,000) and EB3-EB2 porting could stick to assumptions made in the calculations below. Any lower demand for EB-1 (around 30,000) in FY 2011 would take predictions to optimistic level (22nd March, 2007) as long as EB3-EB2 porting could hold it's ground.

In any case, dates are less likely to progress beyond 22nd March, 2007. Reason behind this assumpion is that any EB-1 demand below 30,000 would be offset by equal surge in EB2-ROW demand. We would notice worst-case scenario (8th November 2006) only if EB-1 demand would remain similar or about 38,000 as seen in CY 2010.

The 'unknown' that would pour cold water on each scenario is EB3-EB2 porting. If EB3-EB2 porting for individuals with PD between 2003 to 2007 will exceed 10,000, we might see dates not progressing beyond September 2006 in FY 2011.

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 04 April 2011

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 - 7,854

EB5 - 7,854

Calculations

Cross Chargeability - Use your Spouse's Country of Birth for Green Card

If the principal and derivative beneficiaries were born in different countries, it may be possible to apply cross chargeability principles. This allows individual to expedite his or her green card by using priority date as per their spouse's country of birth. Principle of cross-chargeability can be used for employment-based and family- based green cards.

What is Cross Chargeability?

Visas are usually chargeable to the country of the beneficiary's place of birth. But one basic benefit of immigration to US is that USCIS wants to keep individual's family intact. If one family member were being charged to a country that is over-subscribed, while the other family members in the same preference category were charged to countries that are current, this would result in separation and undue hardship. To remedy this potential problem, the law allows in some situations for the family to elect whichever foreign state is more beneficial. The law seems to limit application to situations where it is necessary to prevent the separation of the spouses or separation of the children and parents. For example, if an Indian citizen is married to Canadian born citizen, he can elect to use ROW as country of chargeability. Law would apply for child as well where he can use his parents country of chargeability. Although vice-versa is not true.

Immigration and Nationality Act [INA 202 (b)(2)]
Rules for Chargeability: if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established for that fiscal year;

As per USCIS- "Under a provision of immigration law known as “cross-charging”, if your spouse was born in a country that is not subject to retrogression, you can “charge” against that country’s visa quota. Please note that your spouse must be born in that country. If she/he became a citizen of that country after being born in a country that is subject to retrogression, you cannot cross-charge to your spouse."


Note: There are exceptions to this rule for some countries (e.g. Kuwait offers citizenship to Original Kuwaiti nationals are those persons who were settled in Kuwait prior to 1920) which allows citizenship only to native people. In this case you may still be able to use cross-chargeabiliy as long as you can reproduce birth certificate issued by a government official from these countries.

USCIS is Introducing new tool to Adjudicate Certain Employment-Based Petitions

New Validation Tool Aids Adjudication of Certain Employment-Based Petitions Questions and Answers

“VIBE” Tool Aims to Enhance Accuracy, Efficiency and Fraud Detection

Introduction

The Web-based Validation Instrument for Business Enterprises (VIBE) is a tool designed to enhance USCIS’s adjudications of certain employment-based immigration petitions. VIBE uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers. USCIS is beta-testing VIBE, and petitioners may begin seeing VIBE-related Requests For Evidence (RFEs).

Questions & Answers about VIBE

Q1. What is VIBE?
A1. VIBE is a Web-based tool that uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers. One of the goals of VIBE is to equip adjudicators with information from an independent source that they can use to help determine petitioners’ eligibility.

Q2. Which petitions will be included in VIBE?
A2. VIBE will include most employment-based petitions filed by companies and organizations, including the following types of petitions: Petition for a Nonimmigrant Worker (Form I-129); Immigration Petition for an Alien Worker (Form I-140); and Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). See www.uscis.gov/vibe for a complete list of immigrant and nonimmigrant classifications included in VIBE. At this time, VIBE will not include employment-based petitions requesting E11, E21 national interest waiver, EB-5, or O and P classifications due to their unique eligibility requirements.

Q3. What information will VIBE provide to Immigration Services Officers (ISOs)?
A3. VIBE will provide ISOs with information on the petitioning company or organization’s business operations, including information related to:

• Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
• Financial standing, including sales volume and credit standing
• Number of employees, including onsite and globally
• Relationships with other entities, including foreign affiliates
• Status, for example whether it is a single entity, branch, subsidiary or headquarters
• Ownership and legal status, such as LLC, partnership or corporation
• Company executives
• Date of establishment as a business entity
• Current physical address.

Q4. Will a final decision be based solely on information obtained through VIBE?
A4. No. VIBE is an additional tool for ISOs to use in the overall adjudicative process. USCIS will not deny a petition based upon information from VIBE without first giving the petitioner an opportunity to respond to USCIS’s concerns.

USCIS will issue an RFE or a Notice of Intent to Deny (NOID) if there is derogatory or contradictory information found in VIBE that is material to the benefit requested and not outweighed by evidence submitted with the petition. The ISO will make a final decision based on the totality of the circumstances.

Q5. How will a petitioning organization know if it received an RFE or NOID due to a VIBE-related issue?
A5. The RFE or NOID will clearly state that the petitioner has been checked in VIBE and will describe the relevant derogatory or contradictory information found in VIBE. The RFE or NOID will also include information about how a petitioner may contact Dun & Bradstreet (D&B), the company that serves as the independent information provider for VIBE, to correct information.

Q6. If a petitioner receives an RFE or NOID for a VIBE-related issue, is the petitioner required to update its record with D&B?
A6. No. If a petitioner receives an RFE or NOID for a VIBE-related issue, it is not required to update its information with D&B. The petitioner may choose to contact D&B to update the record in order to prevent any subsequently filed petitions from receiving a similar RFE or NOID for the VIBE-related issue in question.

Q7. Must a petitioner respond to USCIS if it updates its record with D&B after receiving an RFE or NOID?
A7. Yes. A petitioner must respond to USCIS with the requested additional information after receiving an RFE or a NOID. Updating the petitioner’s record with D&B is not a substitute for responding to USCIS’s RFE or NOID. Failure to respond to the RFE or NOID directly to USCIS could result in denial of the petition.

Q8. Are there any additional USCIS fees for filing a petition subject to VIBE?
A8. No. There are no additional fees associated with VIBE. Petitioners must still comply with all other fee requirements for the requested classification. Visit http://www.uscis.gov/fees for information about current fees.

Q9. Does VIBE require any additional documentary filing requirements?
A9. No. VIBE does not require the petitioner to file additional documentation. However, it is critical that a petitioner accurately provide its name and address on the USCIS form. This aids USCIS in matching information from the petition with information received through VIBE. Listing an attorney or representative’s address in the “Petitioner Information” section of the form may result in the issuance of an RFE.

Q10. When filing an I-140 petition for a classification included in VIBE, does a petitioner still need to submit evidence of “ability to pay”?
A10. Yes. The petitioner must continue to submit evidence with an I-140 petition to demonstrate that it has the ability to pay the proffered wage from the time the priority date was established until the beneficiary obtains permanent residence. Although VIBE will assist ISOs by independently validating a petitioner’s business operations, the information provided to USCIS through VIBE is not a substitute for the required evidence of “ability to pay” that is specified in the regulations.

Q11. What effect will VIBE have on processing times for employment-based petitions?
A11. Initially, VIBE will not change USCIS’s overall processing time goals. If there is relevant derogatory or contradictory information identified by VIBE, the petitioning organization may experience prolonged processing due to the time required to complete the RFE, NOID or administrative inquiry. On the other hand, VIBE may allow USCIS to resolve inconsistencies in the record, potentially reducing the need to issue RFEs. USCIS’s goal for VIBE is to gradually reduce processing times for most employment-based petitions.

Questions & Answers about Dun and Bradstreet (D&B)

Q12. How can I view the information in my company or organization’s D&B report?
A12. D&B provides two ways a company or organization may request a copy of its D&B report:

• By calling D&B’s toll free Customer Support Center at 1-800-234-DUNS (3867)
• By using D&B's Internet-based service, “e-update,” available at www.dnb.com/eupdate.

Q13. Is there a fee for viewing or updating my company or organization’s information or D&B report?
A13. No. There is no fee for a company or organization to view its own D&B report or update its information with D&B.

Q14. I have requested my company or organization’s report from D&B, but I found out that D&B does not yet have any information about my company or organization. What should I do?
A14. If you find that D&B does not yet have any information about your company or organization, you may request a D-U-N-S® Number from D&B. The D-U-N-S® Number is a unique nine-digit identification sequence developed by D&B that provides a unique identifier of single business entities, while linking corporate family structures together. For more information about the D-U-N-S® Number, visit www.dnb.com.

A company or organization may contact D&B to request a D-U-N-S Number:

• By calling D&B’s Customer Support Center at 1-800-234-DUNS (3867)
• By applying online at www.dnb.com. Click the “Get a D&B D-U-N-S® Number” link in the “Customer Resources” section

USCIS does not require petitioners to have a D-U-N-S® Number or include a D-U-N-S® Number when filing with USCIS. USCIS will not automatically issue an RFE or NOID if an employer’s information is not included in the D&B database.

Q15. How long does it take for D&B to update information about a company or organization?
A15. D&B advises that their verification process is generally completed within two to seven business days and that upon completion, the updated information is included in the customer’s record. D&B further advises that requests for new D-U-N-S® Numbers are usually fulfilled within 30 days. Contact D&B for more information.

Please send questions and comments about VIBE to VIBE-Feedback@dhs.gov.

Source - http://www.uscis.gov