Country of birth based visa limits - Attorneys who may help find a legal solution

[jhaalaa]

Respected Attorneys,

I appreciate your presence and volunteer efforts on the IV and immigration blogs.

I firmly believe that the per country visa limits are unfair and in violation of other fairness laws - for example equal opportunity.

I and a lot of other folks are willing to contribute to find a legal solution to this issue .

I firmly believe that we shall be successful. Worst case, even if we fail, our efforts shall help generate other administrative remedies to lessen the backlogs (for example the DOS can slightly slow down the priority date movement for other non-severely backlogged countries to help clear the backlogs faster).

Would you be willing to help raise our cause?
What would be the expenses like?
From a purely unbiased perspective, I am willing to contribute at least $1K, irrespective of the outcome and whether I benefit or not. I have seen similar pledges by numerous others. Together we can persuade many more to contribute.

I recommend coming up with a generic contract for us sponsors. To convey mutual fairness and not serve as a means to funding a black hole, let the contract state that if we do not receive cheques worth total XYZ..... amount by PQR..... date, you shall refund the cheques unused. I and others shall work with you to seek more support for this noble cause.

It may be a win-win strategy for your law firm and the beneficiaries alike.

Your views are welcome.

Thanks & Best Wishes for all.

[greenleaf81]

What a good suggestion. I have always believed the same - country based queues is not equal opportunity. Its actually biasing against certain countries, which is totally ridiculous.
They have diversity GC to allow for promoting or demoting immigration from other countries.

I willing to offer up to 1k myself for this effort. Lets get some mementum on this front. Lawyers and people frustrated by this bias please speak up.

[shivarajan]

@op/jhaalaa,

nice one...

[desi3933]

....

I firmly believe that the per country visa limits are unfair and in violation of other fairness laws - for example equal opportunity.

I and a lot of other folks are willing to contribute to find a legal solution to this issue .

......

Any update on this? Did you get any professional advice?

Did someone tell you that Equal Opportunity Law does not extend to Immigration Laws?

This is may be one of those things where there is lot of noise and then happens nothing.

Good Luck.



________________
Not a legal advice.

[jhaalaa]

To the best of my knowledge, I had posted this request in the attorney forum.
I do not know how it got moved to the general discussion area.

I believe that it would be addressed sooner or later - but we have to raise the issue and take it forward.

Do you think it would be fair, if at the hospitals, Doctors started attending people born in Philippines, China, India and Mexico before they attended others? NO!

I am not against anyone and wish well for all. Just want a fair and dealing. First come, first served.

Best Wishes for all.

[desi3933]

....
Do you think it would be fair, if at the hospitals, Doctors started attending people born in Philippines, China, India and Mexico before they attended others? NO!
.....

Read your argument again and think how this is related to Immigrant visa allocation.

Example - If someone is on B1 visa status, then he is entitled to get same first-come-first-served for hospital, hotel, movie tickets etc. but can he/she claim equal right to apply for job as well? Now, apply your reasoning.

Equal Opportunity Law does not extend to Immigration benefits. Go talk to attorney of your choice, if you still need clarity on this.


________________
Not a legal advice.

[Abhinaym]

To the best of my knowledge, I had posted this request in the attorney forum.
I do not know how it got moved to the general discussion area.

I believe that it would be addressed sooner or later - but we have to raise the issue and take it forward.

Do you think it would be fair, if at the hospitals, Doctors started attending people born in Philippines, China, India and Mexico before they attended others? NO!

I am not against anyone and wish well for all. Just want a fair and dealing. First come, first served.

Best Wishes for all.

Good point, but you have to ask the question on behalf of the employer. Since the labor application belongs to the employer and not to you. That's what I think, right or wrong? :confused:

So it is really up to employers to ask why they should wait longer for an employee to become PR, based on employee's country of origin. It will be interesting to see how many employers will support such an initiative.

[desi3933]

....
What if Immigration is integrated with Employment? For EB immigration, you can't separate Employment and Immigration.
......

This is Employer's driven Immigration i.e. Immigrant Worker petition based on Employer's needs. And Equal Opportunity Employment do not apply to Immigrant Worker Petition (I-140) or visa allocation based on that. Example: Employer may decide to sponsor anyone they feel like. They may have 10 H-1B workers and employer can sponsor workers who are not even employees. No equal employment opportunity protection here.

The immigrant visa number is allocated by Department of State and there no code of Federal Regulations that deals with Equal Employment Opportunity for such allocation. In fact, there are regulations that are based on country of birth for the beneficiary (or beneficiary's spouse). Please note that this is not based on citizenship, rather country of birth).


_______________________
US citizen of Indian origin
Not a legal advice

[sanju_dba]

Good point, but you have to ask the question on behalf of the employer. Since the labor application belongs to the employer and not to you. That's what I think, right or wrong? :confused:

So it is really up to employers to ask why they should wait longer for an employee to become PR, based on employee's country of origin. It will be interesting to see how many employers will support such an initiative.

Correct me if I am wrong here...
485 ie AOS is application filed by the Benificiary not by the employer.
If what i just said is right , and 485 is pending due to County based limitation, then opening this pandora box is worth a shot !

[desi3933]

Correct me if I am wrong here...
485 ie AOS is application filed by the Beneficiary not by the employer.
If what i just said is right , and 485 is pending due to County based limitation, then opening this Pandora box is worth a shot !

Who told you that if I-485 is pending due to limited immigrant visas for the beneficiary, it is against the law. Remember, I-485 application is based on I-140 (Employer's petition for Immigrant Worker) and like you said, person is just that, beneficiary.


_______________________
US citizen of Indian origin
Not a legal advice

[sanju_dba]

Who told you that if I-485 is pending due to limited immigrant visas for the beneficiary, it is against the law. Remember, I-485 application is based on I-140 (Employer's petition for Immigrant Worker) and like you said, person is just that, beneficiary.


_______________________
US citizen of Indian origin
Not a legal advice

Who told you that if I-485 is pending due to limited immigrant visas for the beneficiary, it is against the law.
... is this a new subject you are bringing in?

I-485 application is based on I-140 (Employer's petition for Immigrant Worker) and like you said, person is just that, beneficiary.
-- 485 can be based more than I-140 ( click here (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3faf2c1a6855d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1 RCRD) )
My point here is
Employer files a LC for the benificiary - approval is based on Local Labor Office clearance.
Employer files a 140 for the benificary - approval is based on employers ability to pay.
Benificiary files 485 based on 140 - approval is based on Visa availability (+other conditions ).
So, I see Visa availability is congested due to per country limit.
a Indian PD with 1999 may still on hold due to NoVisa , on the same time a XYZ country with PD 2010 may be eligible.

[desi3933]

Who told you that if I-485 is pending due to limited immigrant visas for the beneficiary, it is against the law.
... is this a new subject you are bringing in?

I just asked you a question.

I-485 application is based on I-140 (Employer's petition for Immigrant Worker) and like you said, person is just that, beneficiary.
-- 485 can be based more than I-140 ( click here (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3faf2c1a6855d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1 RCRD) )

Don't mix family based immigrate petition with employment based petition. Employment based I-485 is always based on I-140. Well, almost always since eb5 does not have I-140. eb5 is based on I-526 (Petition for Alien Entrepreneur).

My point here is
Employer files a LC for the benificiary - approval is based on Local Labor Office clearance. Employer files a 140 for the benificary - approval is based on employers ability to pay. Benificiary files 485 based on 140 - approval is based on Visa availability (+other conditions ).
So, I see Visa availability is congested due to per country limit.
a Indian PD with 1999 may still on hold due to NoVisa , on the same time a XYZ country with PD 2010 may be eligible.

Yes, There is limited number of immigrant visas available every year and if demand for immigrant visas exceeds visa number available, dates are set in the visa bulletin. I-485 can be appoved only when PD is current. (This is true for both - family as well as employment based I-485).

The visa prorating provisions of INA Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.

So, what you are stating is as per law.

_______________________
US citizen of Indian origin
Not a legal advice

[Abhinaym]

Who told you that if I-485 is pending due to limited immigrant visas for the beneficiary, it is against the law.
... is this a new subject you are bringing in?

I-485 application is based on I-140 (Employer's petition for Immigrant Worker) and like you said, person is just that, beneficiary.
-- 485 can be based more than I-140 ( click here (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3faf2c1a6855d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1 RCRD) )
My point here is
Employer files a LC for the benificiary - approval is based on Local Labor Office clearance.
Employer files a 140 for the benificary - approval is based on employers ability to pay.
Benificiary files 485 based on 140 - approval is based on Visa availability (+other conditions ).
So, I see Visa availability is congested due to per country limit.
a Indian PD with 1999 may still on hold due to NoVisa , on the same time a XYZ country with PD 2010 may be eligible.

You're right!

The definition from that websie says:

"Purpose of Form :
To apply to adjust your status to that of a permanent resident of the United States."

So 485 is at beneficiary level. Thank you for the info!

[sanju_dba]

Desi3933: Please help to find the key to the locked door , dont show there is a locked door.

[desi3933]

Desi3933:
Please help to find the key to the locked door, don't show there is a locked door.


What I was trying to state here was that, it is very unlikely that country based quota can be changed by going legal route. This require law change and that requires lobbying and putting efforts in the right direction.

Since employment based immigration is employer driven, lobbying needs to involve employers and they need to demonstrate that person waiting for I-485 is hurting their business.

if you are looking for key for just for yourself, you should consider porting from eb3 to eb2, assuming that your job position qualifies for eb2 preference category.


_______________________
US citizen of Indian origin
Not a legal advice

[idontcare634]

Since employment based immigration is employer driven, lobbying needs to involve employers and they need to demonstrate that person waiting for I-485 is hurting their business.


Actually it does hurt the employers financially. They have to pay more for H1-B
extensions, EADs and APs for employees from retrogressed countries, as it takes longer
for them to get a green card.
The total cost of immigration for retrogressed country employees is higher than
that for non retrogressed countries.