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.

PERM Approvals : Q4 FY 2011

Here is a break down of PERM data (certified and certified_expired only) that was processed each month for FY 2011 Q4. Data has been broken down among different PDs that were approved per month in Q4 FY 2011.  Total 16,937 PERMs were approved in Q4- FY 2011. In addition to this, see PERM database based on PD that is updated until FY 2011.

In addition, please see distribution of PERM approvals segregated based on country of chargeability and category. Most of the PERMs filed in FY 2011- Q4 belonged to India and ROW. It is becoming apparent that with passing time, most of the individuals are filing their cases in EB2 category. 

Most importantly it should be noted that the EB2-ROW-M-P demand is progressing towards around 4000 PERMs per quarter, which if continued through out the year may convert into 4000*2*4 Qtr = 32000 I-485 applications for the fiscal year. This means spillover expected from EB2-ROW-M-P at this rate is 3000-7000 depending upon I-485 denial rate of 0%-15%.

I-485 Primary & Secondary Evidence - Country Specific for USCIS Adjudicators

 Commonly asked question is what to do when primary evidence of birth, marriage, divorce etc is not available. Here is the country specific I-485 Required documents for (AOS) or (CP). Immigration officers or Adjudicators are asked to refer to the list below before making any decision on RFE or NOID in case primary evidence is not submitted or established. Please select your country from the drop-down list to see specific secondary evidence and documents.

Burden of Proof and Standard of Proof

The burden is on the petitioner to establish that he or she is eligible for the benefit sought. This means that if an alien seeking a benefit has not shown eligibility, the application should be denied. The government is not called upon to make any showing of ineligibility until the alien has first shown that he is eligible. You may contrast this in your mind with a criminal case or with a removal hearing in which the government must first prove its case.

Evidential Standards

 

Because the strict rules of evidence used in judicial proceedings do not apply in administrative proceedings, a wide range of oral or documentary evidence may be used in a visa petition proceeding or other immigration benefit application proceeding. A copy of a public record (birth certificate, marriage or divorce certificates, adoption decrees, and similar documents) is admissible if the person having custody over the original records has certified the copy. For example, a copy of a divorce decree is admissible if the clerk of the court has certified the copy. A regulation, provides that a certified copy of a foreign public record (other than a Canadian record) should also be authenticated by a U.S. Foreign Service officer or, if the country is a party to the Hague Convention on abolition of legalization requirements for foreign public records, by a higher-level official of the foreign country.

Best Evidence Rule

In adjudicating a petition or application for a benefit, immigration officer will often deal with evidence and facts which are of a documentary nature, such as marriage dates, dates of birth, death, divorce, criminal records, school records, etc. This often brings into play what is known as the "best evidence rule.” While the best evidence rule is not strictly applicable in an administrative proceeding, IOs should adhere to it as closely as they can. The rule states that where the contents of a document are at issue in a case, the document itself must be introduced rather than secondary evidence as to its content. 

Primary and Secondary Evidence

Closely related to the best evidence rule is the concept of primary and secondary evidence. Primary evidence is evidence which on its face proves a fact. For example, the divorce certificate is primary evidence of a divorce. Secondary evidence is evidence which makes it more likely that the fact sought to be proven by the primary evidence is true, but cannot do so on its own face, without any external reference. In the above example, church records showing that an individual was divorced at a certain time would be secondary evidence of the divorce. 

Adjudicators will often encounter situations in which primary evidence is unavailable. This gives rise to a presumption of ineligibility , which is the applicant or petitioner’s burden to overcome.  A petitioner or applicant cannot simply assert that the primary evidence does not exist. The absence of a primary record, instead, must be proven either:

• By a written statement from the appropriate issuing authority attesting to the fact that no record exists or can be located, or that the record sought was part of some segment of records which were lost or destroyed; or 
• By evidence (such as an affidavit) "that repeated good faith attempts were made to obtain the required document or record."

To check country-specific information on availability of various foreign documents see below drop-down menu that is used by Immigration Officers. If this Appendix shows that a particular record is generally not available in a particular country, USCIS may accept secondary evidence without requiring the written statement from the issuing authority.

COUNTRY SPECIFIC REQUIRED DOCUMENTS

Select a Country Afghanistan Albania Algeria Andorra Angola Anguilla Antigua and Barbuda Argentina Armenia Aruba Ascension Island Australia Austria Azerbaijan Bahamas Bahrain Bangladesh Barbados Belarus Belgium Belize Benin Bermuda Bhutan Bolivia Bosnia-Herzegovina Botswana Brazil Brunei Bulgaria Burkina Faso Burma Burundi Cambodia Cameroon Canada Cape Verde Cayman Islands Central African Republic Chad Chile China Colombia Comoros Congo, Democratic Republic of the Congo, Republic of the Costa Rica Cote d'Ivoire Croatia Cuba Curacao Cyprus Czech Republic Denmark Djibouti Dominica Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Fiji Finland France Gabon Gambia, The Gaza Strip Georgia Germany Ghana Gibraltar Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Holy See (Vatican City) Honduras Hong Kong S.A.R. Hungary Iceland India Indonesia Iran Iraq Ireland Israel Italy Jamaica Japan Jerusalem Jordan Kazakhstan Kenya Kiribati Korea, North Korea, South Kosovo Kuwait Kyrgyzstan Laos Latvia Lebanon Lesotho Liberia Libya Liechtenstein Lithuania Luxembourg Macau S.A.R. Macedonia Madagascar Malawi Malaysia Maldives Mali Malta Marshall Islands Mauritania Mauritius Mexico Micronesia Moldova Monaco Mongolia Montenegro Montserrat Morocco Mozambique Namibia Nauru Nepal Netherlands New Caledonia New Zealand Nicaragua Niger Nigeria Norway Oman Pakistan Palau Panama Papua New Guinea Paraguay Peru Philippines Pitcairn Islands Poland Portugal Qatar Romania Russia Rwanda Samoa San Marino Sao Tome and Principe Saudi Arabia Senegal Serbia Seychelles Sierra Leone Singapore Sint Maarten Slovakia Slovenia Solomon Islands Somalia South Africa South Sudan Spain Sri Lanka St. Helena St. Kitts and Nevis St. Lucia St. Vincent and the Grenadines Sudan Suriname Swaziland Sweden Switzerland Syria Taiwan Tajikistan Tanzania Thailand Timor-Leste Togo Tonga Trinidad and Tobago Tunisia Turkey Turkmenistan Turks and Caicos Islands Tuvalu Uganda Ukraine United Arab Emirates United Kingdom Uruguay Uzbekistan Vanuatu Venezuela Vietnam Virgin Islands, British Wallis and Futuna West Bank Yemen Zambia Zimbabwe

General List of Commonly Required Documents

Birth Certificates

You (and any family members immigrating with you to the United States) must obtain an original birth certificate issued by the official custodian of birth records in your country of birth, showing your date of birth, place of birth, and parentage.

The certificate must contain the:

• Your date of birth
• Your place of birth
• Names of both parents
• Indication by the appropriate authority that it is an extract from the official records

Unobtainable birth certificates

If your birth record is not obtainable for any reason, a certified statement must be obtained from the appropriate government authority explaining why your birth record is unavailable. You must also submit secondary evidence such as:

• A baptismal certificate that contains the date and place of birth, as well as both parents names (providing the baptism took place shortly after birth)
• An adoption decree for an adopted child
• An affidavit from a close relative, preferably your mother, stating the date and place of birth, both parents names, and your mother’s maiden name.

Note: An affidavit executed before an official authorized to take oaths or affirmations must also be provided.


 SAMPLE AFFIDAVIT

AFFIDAVIT BY  Mr. xxxxxx (FATHER NAME) & Mrs.xxxxxxx (MOTHER NAME)

Re: [YOUR FULL NAME]

I, Mr. [FATHER FULL NAME] & Mrs. [MOTHER FULL NAME], here by depose and say:

1.    Our  full and complete address is xxxxxxxxxxx

2.      That I, FATHER'S FULL NAME Age XXX, was born on MM/DD/YYY in the town/city of xxxxxxxx

3. That I, MOTHER'S FULL NAME Age XXX, was born on MM/DD?/YYY in the town/city of xxxxxxxx

4.     We got married on MM/DDYYY in the city of XXXXXX, COUNTRY.

5.     We, FATHER'S & MOTHER'S FULL NAME are parents of the following children:

a. YOUR FULL NAME born on MM/DD/YY; and

b. YOUR SIBLINGS NAME born on MM/DD/YYYY

6. [YOUR FULL NAME] was born in CITY, STATE, COUNTRY

7.      This affidavit is being submitted because official full name of [YOUR FULL NAME] was not [mentioned] OR [registered] OR [OTHER REASON] in the birth certificate at the time of birth. [His/Her] Full Name is [YOUR FULL NAME] /OR/ [YOUR FULL NAME] birth was not registered because [reason].

I declare under penalty of perjury, that the foregoing is a true and correct statement.

_________________________
FATHER NAME and signature 

_________________________
MOTHER NAME and signature 

 
More specific information for each country can be seen after selecting your country above.

Marriage Certificates

Who needs to submit marriage certificates?
If you are married, you must obtain an original marriage certificate, or a certified copy, bearing the appropriate seal or stamp of the issuing authority.

Note: Marriage certificates from certain countries are unavailable. More specific information for each country can be seen after selecting your country above.

Court and Prison Records

If you were convicted of a crime, you must obtain a certified copy of each court record and prison record, regardless of the fact that you may have subsequently been granted amnesty, a pardon or other act of clemency.
Court records should include:

• Complete information about the circumstances of the crime
• The disposition of the case, including sentence, fines or other penalties imposed

Marriage Termination Documentation

Who needs to submit marriage termination documentation?
If you were previously married, you must obtain evidence of the termination of EACH prior marriage. Evidence must be in the form of original documents issued by an official authority, or certified copies bearing the appropriate seal or stamp of the issuing authority, such as:

• FINAL divorce decree
• Death certificate
• Annulment papers

Deportation Documentation

Who needs to submit deportation documents?
If you have been previously deported or removed from the United States at government expense, you must obtain Form I-212, Permission to Reapply After Deportation, from the U.S. Citizenship and Immigration Service, or from a U.S. Embassy or Consulate, and follow the instructions on that form.

 Military Records

Who needs to submit military records?
If you served in the military forces of any country, you must obtain a copy of your military record.
Note: Military records from certain countries are unavailable.
More specific information for each country can be seen after selecting your country above.
 

Petitioner Documents

Who needs to submit petitioner documents?
If you are applying for an IR5 (Parent of a U.S. Citizen) visa, you are required to provide:

1. Original or certified copy of your Petitioner’s birth certificate
2. Original or certified copy of your Petitioner’s marriage certificate from the Petitioner’s current and all previous marriages.

If you are applying for a F4 (Brother or Sister of a U.S. Citizen) visa you are required to provide:

1. Original or certified copy of your Petitioners birth certificate.
 

Photocopy of Valid Passport Biographic Data Page

Who needs to submit a photocopy of their passport?
The applicant and each family member accompanying the applicant must submit a photocopy of the biographic data page from their respective valid passport.
More specific information for each country can be seen after selecting your country above.

Photographs

You must submit two identical color photographs. Review Photograph Requirements for size specifications and more information.

October 2011 EB Demand from I-485 Receipt Data

As per recently released USCIS Dashboard data on I-485 Receipts, here is the estimation of demand for each category for the month of October 2011. Please see this article to understand how to read this table. Based on past experience, usually 2x or 3x representation of EB2-IC on trackitt is fair estimation.

EB2-IC rough demand estimation that can be accounted until October 2011 is

Worst case = 8000* + 4807 (PWMB) before 15 April 2007 [see previous article] + 2679 (PWMB) from 15 April 07 - 15 July 2007 = 15,486

Best case = 8000* + 3485 (PWMB) before 15 April 2007 + 2200 (PWMB) from 15 April 07 - 15 July 2007 = 13,685

*- Used in approving EB2-IC backlog, after movements for October - November 2011 VB

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.

February 2012 Visa Bulletin Predictions - EB Category

February 2012 Visa Bulletin will be the second bulletin for Q2 - FY 2012.  Here is the prediction for February 2012 Visa Bulletin. We should see following movements in each category as long as USCIS/DOS would use visa numbers for each category as per statutory allocations.

February 2012 Visa Bulletin Predictions

• EB3- China could advance to 15 November 2004
• EB3 – ROW, EB3-Philippines, and EB3-Mexico could advance to 22 February 2006.
• EB2 will be current for ROW, Mexico and Philippines.
• EB3-India could advance to 15 August 2002.
• EB2-India and EB2-China could see No movement-3 months movement in coming bulletin. It is not possible to estimate movement for EB2-IC based on available demand and calculations. Based on calculations, EB2-IC in most optimum case should provide green card up to May-June 2008 for this year; current demand would provide enough cases that can be allocated visas through EB2-IC annual limits and estimated spillover as per current trend. February 2012 movement will be solely based on DOS/USCIS’ policy to intake enough buffer demand for FY 2012 or beyond. Dates to retrogress in this bulletin seems not plausible.

At this time, our gut feeling is that movement can be as big as 3 months in February 2012 visa bulletin. This could be last intake for this fiscal year and then dates may stall until summer 2012.

Note – Predictions are based on educated guess and is not guaranteed. Please take it with a grain of salt.