Is it true ? EB Dependents mis classified under EMPLOYMENT quota?

[simple1]

This is my first post.

My Employer's Inhouse Attorney ( one of big 4 ) says technically EB dependents ( all 1,2,3) must be classified under FAMILY quota. USCIS mis classifies them under EMPLOYMENT quota.

Is he technically correct ?

Since, Most of dependents will not be affected when they are classified under Family quota (as they have AP and EAD).

Can IV possibly consider for push for reclassification of Dependents under Family Quota ? This will reduce backlog.

Please don't take it out of context, I am not trying to hurt any EB dependents, I too have a spouse working part time using beneficiary EAD. This is more of an open question.

[akred]

A plain reading of the INA supports this contention. But then the USCIS always works in mysterious ways.

[simple1]

thanks akred for refering INA. I went through it now

In I485 application "Part 2: App Type" Option b (derivative status for spouses and children)
is actually related to quota listed in INA Sec. 203. [8 U.S.C. 1153] a - 2. (family quota)
and not to INA Sec. 203. [8 U.S.C. 1153] b - * (employment quota).

IV Core. Can something be done to highlight this issue in your conversation with authorities ?

[Caliber]

thanks akred for refering INA. I went through it now

In I485 application "Part 2: App Type" Option b (derivative status for spouses and children)
is actually related to quota listed in INA Sec. 203. [8 U.S.C. 1153] a - 2. (family quota)
and not to INA Sec. 203. [8 U.S.C. 1153] b - * (employment quota).

IV Core. Can something be done to highlight this issue in your conversation with authorities ?

This is good idea. But Family GC's have a wait queue of 10-15 years. Only immediate family members of Citizens does not have queue.

But this is a good point to note when our Lobbyists discuss with USCIS.

[simple1]

caliber,

I belive It is not 10-15 years.

actually, even after correctly following the law, in case of EB3, families may get it earlier.
VB date for 2A (family quota) is 08OCT04
VB date for EB3 is now un available.

In my case (EB2). The VB date is 15FEB04. Families VB date is 08OCT04(my spouse). Only 6months diff.

gurus, correct me if required.

[ItIsNotFunny]

This is my first post.

My Employer's Inhouse Attorney ( one of big 4 ) says technically EB dependents ( all 1,2,3) must be classified under FAMILY quota. USCIS mis classifies them under EMPLOYMENT quota.

Is he technically correct ?

Since, Most of dependents will not be affected when they are classified under Family quota (as they have AP and EAD).

Can IV possibly consider for push for reclassification of Dependents under Family Quota ? This will reduce backlog.

Please don't take it out of context, I am not trying to hurt any EB dependents, I too have a spouse working part time using beneficiary EAD. This is more of an open question.

This is an excellent point. I would like to raise this up in next IV conference call.

[jchan]

Be careful what you ask for. If one day, the spouse is classified in family quota and has to wait 4 more years than you do. Is this something you really want?

[eyeswe]

Thanks for bringing this up. In the byzantine world of USCIS regs this probably got lost somewhere?
But i agree with the post above .. we are really stuck between a rock anda hard place on this issue..If we ask them to move all spouse visa numbers to Family , which is how it should be based on the legislations you are quoting, then our partners will have to wait for more number of years than EB categories. It does not matter that EB3 is now U. my feeling is in the long run EB is a better category than FB....
Also it could present more issue for all those aged out folks who are at least in EB where the gravy train seems to be inching unlike the FB train... And we don't even need to scenario plan the FB if all our spouse appln goes in to taht bucket.. But there is an advantage.. the primary applicant could get their GC cards faster (I am assuming) and this probably may be truer (if there is anything like that) for India and China, where usually the EB applicantion includes spouse/child visa reequest as well..
Very hard to choose.. Also what happens if the primary applicant gets the GC, but the spouse cannot.. On waht visa he/she will continue? May be that is the reason why they assumed all spouse visa application as EB?

[gc_on_demand]

This is my first post.

My Employer's Inhouse Attorney ( one of big 4 ) says technically EB dependents ( all 1,2,3) must be classified under FAMILY quota. USCIS mis classifies them under EMPLOYMENT quota.

Is he technically correct ?

Since, Most of dependents will not be affected when they are classified under Family quota (as they have AP and EAD).

Can IV possibly consider for push for reclassification of Dependents under Family Quota ? This will reduce backlog.

Please don't take it out of context, I am not trying to hurt any EB dependents, I too have a spouse working part time using beneficiary EAD. This is more of an open question.


Will you join our hands in recapture ? Will you considering contributing to IV. I will be happy if you can activlly participate in our effort.


This guy is here to divide us on one more point. People who has filled AOS VS Poeple who didnot.

People whose spouses have EAD and AP will go for it while people whose spouses doesnot have EAD AP will oppose it . This is very well game played by Anti. Be aware..

[number30]

IV Core. Can something be done to highlight this issue in your conversation with authorities ?

The problem with this argument is it separates the members of the Family. If the marriage is occurred prior to approval of green card spouse will fall in EB category. If the marriage date is after approval of the green card it will fall into Family quota. See those guys who got married after green card and trying to bring their spouses how much trouble they are having. Instead of focusing on that You can Focus on the issue of making one EB visa number per family in case EB immigrant. Now Each one of the Spouse are using one number. That will effectively double the available visa numbers.

[h1techSlave]

I think this is an unexplored point. Thanks for bringing it up guys.

I think IV needs to hire a good immigration attorney. May be IV can start a new funding drive to see, if members are really interested this hiring an attorney. The same attorney also can help us by answering our questions.

[puddonhead]

iff = if and only if

The I485s for both primary and dependent could be filed either if the family or the employment category is current.

i.e. assume my PD is X. If X is current in FB category but not in EB category - both the primary and the dependent should still be able to file I485. Same happens if X is current in EB and not in FB.

In this scenario - if the family based category is retrogressed:
Option 1: Spouce can wait the retrogression out in AP/EAD.
Option 2: Primary can become a citizen in 5 years and then "upgrade" the I485 to a new FB category with no retrogression.

Without this joint filing if either category is current - it can cause nightmares for the dependent if the primary gets a GC and the dependent loses H4/L2.

[simple1]

number30,

Please don’t take it out of context. This is not an argument.

While, I agree with you **we need to work for** a future better solution of not counting EB dependents in any quota.

My question is more of what the **law currently says**?.
According to INA EB dependents must be counted under family quota.

[simple1]

jchan,

I believe, the family quota is not very farbehind. Defiantly not 4 years.

Even if it is 4 years. She has EAD and AP to hold on to. Instead of both being stuckup it would be better atleast one reaches shore immediately.

[simple1]

gc_on_demand ,

I am not anti at all. I am trying to understand the law.

How does a (I485) spouse doesnt have EAD and AP on hand (even if not using it and in H4/L2 etc)?
Wont they have problem when the dates become current and GC is issued to primary.

[gc_on_demand]

gc_on_demand ,

I am not anti at all. I am trying to understand the law.

How does a (I485) spouse doesnt have EAD and AP on hand (even if not using it and in H4/L2 etc)?
Wont they have problem when the dates become current and GC is issued to primary.

Lets say I have PD of Aug 2007 and If govt makes me to file under EB and my wife under FB. When date becomes current in EB ( which has higer probability ) I will be able to file but my wife will not.

Now questions will be what will be her status ? If I switch to EAD ? second if govt give them a legal status but they have to wait for 3-4 years to date become current and file for 485.

[simple1]

gc_on_demand,

Please dont mix priority date with quota.
spouse's priority date will be the same as primary priority date.

We are discussing about quota here.

Lets say I have PD of Aug 2007 and If govt makes me to file under EB and my wife under FB. When date becomes current in EB ( which has higer probability ) I will be able to file but my wife will not.

Now questions will be what will be her status ? If I switch to EAD ? second if govt give them a legal status but they have to wait for 3-4 years to date become current and file for 485.

[Madhuri]

I second you.
If 485 can be filed for both primasy and dependent when EB is current or FB is current
this will really work pretty well. dependents can be on EAD/AP status in this case.

iff = if and only if

The I485s for both primary and dependent could be filed either if the family or the employment category is current.

i.e. assume my PD is X. If X is current in FB category but not in EB category - both the primary and the dependent should still be able to file I485. Same happens if X is current in EB and not in FB.

In this scenario - if the family based category is retrogressed:
Option 1: Spouce can wait the retrogression out in AP/EAD.
Option 2: Primary can become a citizen in 5 years and then "upgrade" the I485 to a new FB category with no retrogression.

Without this joint filing if either category is current - it can cause nightmares for the dependent if the primary gets a GC and the dependent loses H4/L2.

[snathan]

I would not support this at all. Though it would clear the back log for the primary immigrant. What about the spouse and children. When you get your GC, dont you want to get it for your spouse and kids. Do you want them to keep in limbo for five years. It can be counted against family quota but should be given along with the primary. Otherwise its crap.

This might be antis work to divide the community. So be aware.

[snathan]

gc_on_demand,

Please dont mix priority date with quota.
spouse's priority date will be the same as primary priority date.

We are discussing about quota here.

When you have the PD for primary as 2009 in EB2. He might be getting the GC in 3-4 years. But if you count the spouse in FB it will be another five years. Specially when you count the Spouse agaist the FB it will increase the back log.

So one of the IV agenda is remove counting the spouse/children against the quota. So we dont need to have all this mess.

[gc_on_demand]

gc_on_demand,

Please dont mix priority date with quota.
spouse's priority date will be the same as primary priority date.

We are discussing about quota here.

I know Spouse's PD will be same as Primary's PD . But good for people who filled 485. If person has latest PD let says Aug 2007 (Eb2 india ) .. Under Eb category he may be able to file 485. But dependent may not be able to file 485 as Family quota is backlogged. Family quota also has PD and category. Under which category spouses of primary will fall ? F2A ? F2B ? do you know this ?

[vbkris77]

INA doesn't talk about visa allocation for spouse and children in employment pref. So we need to atleast challenge CIS interpretation on this.

[dvb123]

Dependends will come under

FAMILY-SPONSORED PREFERENCES

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

The priority date will be same as the primary because the law states that primary and dependents have the same priority date. FB 2 is almost same priority dated as EB 1,2 and 3 preferences.

Primary -> Gets visa number from EB 1,2 or 3
Dependents -> Gets visa number from FB2

Wife and children need not wait because FB2 is not that retrogressed.

[gc28262]

How can an EB dependent file in Family category ?

For any one (dependent ) to qualify for filing GC, they have to qualify under one of the categories either family or EB.

Family category:
Applicant has to have a relation with a GC holder or a citizen. When primary EB applicant itself is in AOS status ( not GC) how can a spouse file in Family category ?

2 conditions need to be met for spouse to apply

1. Primary should be having his greencard.
2. PD should be current for the spouse in family category.


Typically condition 1 won't be met for an EB dependent spouse, so USCIS process them under EB category.

[simple1]

Thanks vbkris77. That is what I am saying.
There is no references in INA showing EB dependents must be counted in EB quota. period.

INA doesn't talk about visa allocation for spouse and children in employment pref. So we need to atleast challenge CIS interpretation on this.

[jchan]

jchan,

I believe, the family quota is not very farbehind. Defiantly not 4 years.

Even if it is 4 years. She has EAD and AP to hold on to. Instead of both being stuckup it would be better atleast one reaches shore immediately.

Well, you assume family members can get AP and EAD after submitting I-485. Not true for many people. Take myself as an example, I was not lucky enough to file my I485 in 2007. So with a PD of early 2007, I have none of the benefit from AOS at all.

Although for me it's not a big deal because my wife will soon get her PhD and will file for her own immigration petition. This actually works better for us, because it will make the line much shorter and both of us will get the green card much quicker.

However, for those who do not work and solely depend on their spouses to get green card. This change can spell disaster for them during the long wait caused by retrogression without the ability to file AOS.

[mqualique]

Even if FB 2 almost has same priority date as EB 2 or 3 once the EB dependents quota gets counted against FB quota almost half of the EB backlog would move to FB which will cause progression in EB dates and retrogression in FB dates. Anyway I think simple1 point is definitely a good point and worthy of further discussion and clarification from attorneys.

Dependends will come under

FAMILY-SPONSORED PREFERENCES

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

The priority date will be same as the primary because the law states that primary and dependents have the same priority date. FB 2 is almost same priority dated as EB 1,2 and 3 preferences.

Primary -> Gets visa number from EB 1,2 or 3
Dependents -> Gets visa number from FB2

Wife and children need not wait because FB2 is not that retrogressed.

[vbkris77]

Well, you assume family members can get AP and EAD after submitting I-485. Not true for many people. Take myself as an example, I was not lucky enough to file my I485 in 2007. So with a PD of early 2007, I have none of the benefit from AOS a(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d) ) of--

(i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or

(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 2a/

t all.

Although for me it's not a big deal because my wife will soon get her PhD and will file for her own immigration petition. This actually works better for us, because it will make the line much shorter and both of us will get the green card much quicker.

However, for those who do not work and solely depend on their spouses to get green card. This change can spell disaster for them during the long wait caused by retrogression without the ability to file AOS.

I am in the same boat, per INA, when your PD is current, you including your family will be able to file I485. What OP saying is that they should be counted against FB2. INA explicitly has that point.. With is we should be able to file I485 quick and primary gets GC quickly.


(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d) ) of--

(i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or

(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 2a/

[simple1]

yes, I want GC for my wife. 6 months to a year addtional wait is ok. Provided I get cleared soon.

Come on, your comment "limbo for five years" without basis. The FB2 cat is not very far behind. Only 6 months - 1 year behind in most cases. check VB.

Stop using words anti etc. I am just like you frustrated like hell.

My primary point is EB dependents must be out of EB quota.
There is no legal basis for them to be in EB quota. period.

I would not support this at all. Though it would clear the back log for the primary immigrant. What about the spouse and children. When you get your GC, dont you want to get it for your spouse and kids. Do you want them to keep in limbo for five years. It can be counted against family quota but should be given along with the primary. Otherwise its crap.

This might be antis work to divide the community. So be aware.

[gauravster]

Looks like this is a good idea. Even if FB2 is not current, USCIS might allow applying for 485 in such cases.

Maybe someone more knowledgable or from the core members can throw some light on this.

[simple1]

thanks. IV Core could you please discuss and advice ?

This is an excellent point. I would like to raise this up in next IV conference call.

Looks like this is a good idea. Even if FB2 is not current, USCIS might allow applying for 485 in such cases.

Maybe someone more knowledgable or from the core members can throw some light on this.

[simple1]

Not sure I understand your scenario.

Why would the dependent not file AOS at all ? Are you refering to CP ?

My good faith best understanding is FB2 is not far behind. please refer VB.

Well, you assume family members can get AP and EAD after submitting I-485. Not true for many people. Take myself as an example, I was not lucky enough to file my I485 in 2007. So with a PD of early 2007, I have none of the benefit from AOS at all.

Although for me it's not a big deal because my wife will soon get her PhD and will file for her own immigration petition. This actually works better for us, because it will make the line much shorter and both of us will get the green card much quicker.

However, for those who do not work and solely depend on their spouses to get green card. This change can spell disaster for them during the long wait caused by retrogression without the ability to file AOS.

[gc_on_demand]

Not sure I understand your scenario.

Why would the dependent not file AOS at all ? Are you refering to CP ?

My good faith best understanding is FB2 is not far behind. please refer VB.

There may be a chance that Eb2 india will touch 2008 in a year. and F2b will be at 2006. How dependet can file 485 as if they counted against F2A their date is not current.

[mqualique]

Applying EB PD but using Visa number from FB Quota would be a awesome. Not sure what complications this may cause on the FB side. This seems like a visa-leak (like memory leak) scenario from FB. This will put GC Holders dependents at a disadvantaged position as compared to us who don't have GC yet because EB PD will always be ahead to FB PD due to 'Visa-Leak'.

[simple1]

FB2A which is not very far behind.

I know Spouse's PD will be same as Primary's PD . But good for people who filled 485. If person has latest PD let says Aug 2007 (Eb2 india ) .. Under Eb category he may be able to file 485. But dependent may not be able to file 485 as Family quota is backlogged. Family quota also has PD and category. Under which category spouses of primary will fall ? F2A ? F2B ? do you know this ?

[mqualique]

My good faith best understanding is FB2 is not far behind. please refer VB.

Even though right now FB2 is not far behind the gap will progressively increase due to post given below. Consider 2 glasses half full. If you pour 50% water from 1 glass to another 1 glass will be 75% full(EB) and other glass will be 25%full(FB).

Even if FB 2 almost has same priority date as EB 2 or 3 once the EB dependents quota gets counted against FB quota almost half of the EB backlog would move to FB which will cause progression in EB dates and retrogression in FB dates. Anyway I think simple1 point is definitely a good point and worthy of further discussion and clarification from attorneys.

[mundada]

I support finding the fact...

Following two concerns were raised but the answers should satisfy....

1) Spouse may not get EAD/AP?
The document clearly states that if the primary's priority date is current then the primary can file I-485 and the spouse can file I-485 as dependent.
Once spouse files his/her I-485 he/she becomes eligible for EAD/AP and there are no restrictions on what and where the spouse can work on EAD/AP.
The document only says that the visa must be used from family quota and not from employment quota.
How does it then matter whether the spouse gets green card even after 10 years if he/she can work anywhere, any occupation and full time/part time?

2) Spouse may get GC long after?
Look at it this way currently we have pool of 140K to share among primary and dependents. What if this pool becomes 200K (if we assume 60K from family quota for illustration purpose)? Which one will be faster. It has to be 200K pool.

In any case let the correct rules be followed.

[vbkris77]

Even though right now FB2 is not far behind the gap will progressively increase due to post given below. Consider 2 glasses half full. If you pour 50% water from 1 glass to another 1 glass will be 75% full(EB) and other glass will be 25%full(FB).

Our intention is to findout if CIS interpretation is correct. If spouse can stay in the country with EAD and AP and if Primary gets GC first. It won't matter much becos, that EAD will not have any strings attached on same or similar etc. So we should be OK.

[simple1]

This is my understanding. Please take time to read INA, I485 application and current VB.

1. The category of the derivative and quota of derivative is not related to I485.

All that matter at the time of derivative I485 application is the
a) primary's priority date is current
b) primary's I485/AOS application pending.

read the I485 application again Part2 option b. "My spouse or parent applied for adjustment of status or"

Gurus, Forum-Attorneys, IV-Core, feel free to correct me.

2. We are more concerned about the quota. where the derivative falls. I strongly believe they must be out of EB2 quota and placed under FB2A.


There may be a chance that Eb2 india will touch 2008 in a year. and F2b will be at 2006. How dependet can file 485 as if they counted against F2A their date is not current.

[number30]

FB2A which is not very far behind.

But add the Dependents to that. Now at least you wife is coming with you. Just think if there was no H4 visa.

[simple1]

Adding dependents/derivative is based on primary’s PD and app status.

Challenge me with a scenario that will have an issue. If someone doesn’t have H4 they will be affected anyways. They will not have additional impact due to this.

Please read INA, I485 application and current VB.

I personally believe none will be affected and left too behind (yes, they will be delayed a bit, they will have AP/EAD to hold on to).

But add the Dependents to that. Now at least you wife is coming with you. Just think if there was no H4 visa.

[gc_on_demand]

Adding dependents/derivative is based on primary’s PD and app status.

Challenge me with a scenario that will have an issue. If someone doesn’t have H4 they will be affected anyways. They will not have additional impact due to this.

Please read INA, I485 application and current VB.

I personally believe none will be affected and left too behind (yes, they will be delayed a bit, they will have AP/EAD to hold on to).

(1) I am on H1b and wife on H4 . I have PD of Jan 2008. Now In july 2009 VB shows Eb2 india with PD of Mar 2008 and F2A with Jan 2005. I will be able to file for 485 will my wife can file 485 ?

(2) If she cannot file and what if my company insist me to be on EAD and resufe to extend my H1b. What will be status of my wife.. ( Assuming she didnot file AOS while I did ).

(3) What will be her category or status if I am lucky and get GC in 2 months since my date become current ?


I think just simply saying use FB quota for dependent doesnot make sense. We need to have answer to this. I agree that Law allows INS to use FB qupta for dependent but at same time so many other restriction prevent them to use it. Like dead lock condition.

[MCQ]

I have long been of the opinion - told to me by an immigration lawyer, that when you file your I-485 when the PD is current, and your dependents file also that only the Primary counts towards the quota, dependent GC's do not count towards the employment based visa quota - so this may be a moot point as to whether or not they should be in the family or employment based lists.
Much like when you file for an H1B, the H4 for your dependants does not count agains the overall H quota.

[simple1]

exactly, spouse/derivate doesn’t get affected at all (other than a shorter or longer delay, depending on calculations).

Anyways, regardless EAD/AP or green card the derivate cant leave the country longer time. There will be no diff for her.

They have no strings attached EAD. Look at ours/primary? Can a programmer-EAD take up Project manager Job? Categorically No.

If the primary gets greencard earlier both (primary with GC, spouse with open-ead) can work/move any place they want.

Plus it is fair this way for some primary waiting in the queue and there is no law tying EBdependent with EBquota.

Again, I am waiting to hear a forum-Attorney or IV-core’s interpretation.

I support finding the fact...

Following two concerns were raised but the answers should satisfy....

1) Spouse may not get EAD/AP?
The document clearly states that if the primary's priority date is current then the primary can file I-485 and the spouse can file I-485 as dependent.
Once spouse files his/her I-485 he/she becomes eligible for EAD/AP and there are no restrictions on what and where the spouse can work on EAD/AP.
The document only says that the visa must be used from family quota and not from employment quota.
How does it then matter whether the spouse gets green card even after 10 years if he/she can work anywhere, any occupation and full time/part time?

2) Spouse may get GC long after?
Look at it this way currently we have pool of 140K to share among primary and dependents. What if this pool becomes 200K (if we assume 60K from family quota for illustration purpose)? Which one will be faster. It has to be 200K pool.

In any case let the correct rules be followed.

[amslonewolf]

This could have a huge impact.. I posted this on the donor forum as well.

[kittu1991]

Wow..... Now there is a new thread for donors only to discuss the same thing. If you want to discuss further donate and be a donor.

[mqualique]

Spouse can stay in the country as far as her/his 485 has been applied before EB primary got a GC and after EB primary PD was current.

It WILL matter if while filing 485 EB & EB dependents have to use EB PD & FB PD respectively because then it could happen that EB primary got GC but EB dependent was never able to file 485.

In most cases it WON'T matter if while filing 485 EB & EB dependents can both use EB PD.

So if EB Dependents can use FB Quota but EB PD that would be really good for us. Off course clarification from attorney is always a good idea.

Our intention is to findout if CIS interpretation is correct. If spouse can stay in the country with EAD and AP and if Primary gets GC first. It won't matter much becos, that EAD will not have any strings attached on same or similar etc. So we should be OK.

[ashatara78]

It is a good point that some people have brought up and I am sure IV core will evaluate it to see if it will help more people or less.

However.........

I strongly believe that family should be together. Whatever GC and other immigration issues we have, one should strive for keeping the family together at all times. Missing out on even a few years of togetherness with your spouse and kids is not worth it.

Even in the current system where dependents come under EB quota, I have known people where one spouse got the GC and the other one had to wait for many years because of a name check or something. But the current laws (EAD/AP etc) made sure that atleast the family was not broken up.

If we are looking for a change or correction of law, we need to make sure that the new law has NO kinks that hinder family staying together. If primary applicant gets a GC and the spouse is still waiting for 5 more years (it is possible), then the primary applicant can get citizenship and apply for a new GC for the secondary. Like I said - This situation is possible even in the current system.

As long as kinks are discussed with the lawyers and smoothened out to preserve family togetherness, it should be fine.

[simple1]

I second that. Technically they should not be. thanks MCQ, H1 and H4 is a great example
If at all they are counted they must be counted in FB2A not EB.

Honestly, I don’t care if they are counted or not. Why would 5 year old kid get counted in EB quota. I don’t get it.

as long as they are not counted in EBquota. There is no legal basis for that. Or atleast I could not find one.

I have long been of the opinion - told to me by an immigration lawyer, that when you file your I-485 when the PD is current, and your dependents file also that only the Primary counts towards the quota, dependent GC's do not count towards the employment based visa quota - so this may be a moot point as to whether or not they should be in the family or employment based lists.
Much like when you file for an H1B, the H4 for your dependants does not count agains the overall H quota.

[simple1]

I repeat to avoid misunderstanding.
This thread tries to findout the correct interpretation of current law.
I am not proposing any change or correction of law. No lobbies or congress involved.

I also strongly believe families should be together and they will be ( as no one will be affected ).

It is a good point that some people have brought up and I am sure IV core will evaluate it to see if it will help more people or less.

However.........

I strongly believe that family should be together. Whatever GC and other immigration issues we have, one should strive for keeping the family together at all times. Missing out on even a few years of togetherness with your spouse and kids is not worth it.

Even in the current system where dependents come under EB quota, I have known people where one spouse got the GC and the other one had to wait for many years because of a name check or something. But the current laws (EAD/AP etc) made sure that atleast the family was not broken up.

If we are looking for a change or correction of law, we need to make sure that the new law has NO kinks that hinder family staying together. If primary applicant gets a GC and the spouse is still waiting for 5 more years (it is possible), then the primary applicant can get citizenship and apply for a new GC for the secondary. Like I said - This situation is possible even in the current system.

As long as kinks are discussed with the lawyers and smoothened out to preserve family togetherness, it should be fine.

[vbkris77]

If our interpretation is correct, how many of you are willing to sue CIS??

[simple1]

I just donated, my id is not reflecting it.

Wow..... Now there is a new thread for donors only to discuss the same thing. If you want to discuss further donate and be a donor.

[ItIsNotFunny]

Well, you assume family members can get AP and EAD after submitting I-485. Not true for many people. Take myself as an example, I was not lucky enough to file my I485 in 2007. So with a PD of early 2007, I have none of the benefit from AOS at all.

Although for me it's not a big deal because my wife will soon get her PhD and will file for her own immigration petition. This actually works better for us, because it will make the line much shorter and both of us will get the green card much quicker.

However, for those who do not work and solely depend on their spouses to get green card. This change can spell disaster for them during the long wait caused by retrogression without the ability to file AOS.

Chan is right. If interpretation will start the way you are proposing, it will be sheer disaster for people who didn't file I-485 yet.

[simple1]

Is suing the only option? USCIS could be making unintended mistake. We want to get clarification in a smoother and faster process before the flood gates open in October.

There should be some other legal-process to get written clarifications/interpretation etc on the law (like some kind of AILA discussion with CIS).

If our interpretation is correct, how many of you are willing to sue CIS??

[vbkris77]

Is suing the only option? USCIS could be making unintended mistake. We want to get clarification in a smoother and faster process before the flood gates open in October.

There should be some other legal-process to get written clarifications/interpretation etc on the law (like some kind of AILA discussion with CIS).

But my friend, CIS has a very very thick skin... So the only language they understand is suit.

[simple1]

Honestly, I did not understand jchan's scenario.

AFIK, none will get affected. Please look for my earlier posts regarding I485 Derivative application pre-requisites.

I am waiting to hear from IV-core's or forum-attorney’s interpretation.

Chan is right. If interpretation will start the way you are proposing, it will be sheer disaster for people who didn't file I-485 yet.

[simple1]

You could be right.

However trying first, through normal clarification channel (if available) doesn’t hurt.

But my friend, CIS has a very very thick skin... So the only language they understand is suit.

[mqualique]

FOIA may be. Btw can you add a poll to this thread to see forum support?

Is suing the only option? USCIS could be making unintended mistake. We want to get clarification in a smoother and faster process before the flood gates open in October.

There should be some other legal-process to get written clarifications/interpretation etc on the law (like some kind of AILA discussion with CIS).

[simple1]

FOIA may be. Btw can you add a poll to this thread to see forum support?

Done, added poll.

[mqualique]

Thanks

Done, added poll.

[snathan]

yes, I want GC for my wife. 6 months to a year addtional wait is ok. Provided I get cleared soon.

Come on, your comment "limbo for five years" without basis. The FB2 cat is not very far behind. Only 6 months - 1 year behind in most cases. check VB.

Stop using words anti etc. I am just like you frustrated like hell.

My primary point is EB dependents must be out of EB quota.
There is no legal basis for them to be in EB quota. period.

If you are USC and then you are talking abou the FB2. Not for the GC holder. So will have to wait for years.

[simple1]

Take this scenario.

Under current "mis categorized quota" setup a EB3 takes 6 years to get GC for entire family. take this following scenario.

So the diff
current primary @ebquota - 6 years minimum
current derivative @ebquota - 6 years minimum
correct primary @ebquota - less than 2 years approx ( one person in place of 3)
correct derivative @fbquota - say 7 years.

The diff will be approx 1 year for the derivative ( 7 years – 6 years ) when they are moved from ebquota to fbquota.

again it cannot be more than 7 years ( 2 years primary GC + 5 years primary USC). the primary will get citizenship in 5 years and sponser the wife with in 2 to 3 months. so the diff cannot be more that a year. for derivative.

Remember this point: this is not change of law. this is the correct interpretation of law).
If it is not today some one will bring it up to CIS very soon.


If you are USC and then you are talking abou the FB2. Not for the GC holder. So will have to wait for years.

[lost_in_migration]

INA: ACT 203 - ALLOCATION OF IMMIGRANT VISAS

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=c9fef57852dc066cfe16a4cb81683 8a4

PART 1

Sec. 203. [8 U.S.C. 1153]

(a) Preference Allocation for Family-Sponsored Immigrants. - Aliens subject to the worldwide level specified in section 201(c) for family-sponsored immigrants shall be allotted visas as follows:

(1) Unmarried sons and daughters of citizens. - Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400, plus any visas not required for the class specified in paragraph (4).

(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens. - Qualified immigrants -

(A) who are the spouses or children of an alien lawfully admitted for permanent residence, or

(B) who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence, shall be allocated visas in a number not to exceed 114,200, plus the number (if any) by which such worldwide level exceeds 226,000, plus any visas not required for the class specified in paragraph (1); except that not less than 77 percent of such visa numbers shall be allocated to aliens described in subparagraph (A).

(3) Married sons and married daughters of citizens. - Qualified immigrants who are the married sons or married daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400, plus any visas not required for the classes specified in paragraphs (1) and (2).

(4) Brothers and sisters of citizens. - Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed 65,000, plus any visas not required for the classes specified in paragraphs (1) through (3).

(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject to the worldwide level specified in section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as follows:

(1) Priority workers. - Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):

(A) Aliens with extraordinary ability. - An alien is described in this subparagraph if -

(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,

(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and

(iii) the alien's entry into the United States will substantially benefit prospectively the United States.

(B) Outstanding professors and researchers. -An alien is described in this subparagraph if -

(i) the alien is recognized internationally as outstanding in a specific academic area,

(ii) the alien has at least 3 years of experience in teaching or research in the academic area, and

(iii) the alien seeks to enter the United States-

(I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,

(II) for a comparable position with a university or institution of higher education to conduct research in the area, or

(III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

(C) Certain multinational executives and managers. An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.


(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -

(A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

(B) (i) 1/ 1a/ Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.



(ii) (I) The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if--

(aa) the alien physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and



(bb) a Federal agency or a department of public health in any State has previously determined that the alien physician's work in such an area or at such facility was in the public interest.

[TO BE CONTD.]

[lost_in_migration]

INA: ACT 203 - ALLOCATION OF IMMIGRANT VISAS

http://www.uscis.gov/propub/ProPubVA...16a4cb816838a4

PART 2 [CONTD.]

(II) No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under section 204(b) , and the Attorney General may not adjust the status of such an alien physician from that of a nonimmigrant alien to that of a permanent resident alien under section 245 , until such time as the alien has worked full time as a physician for an aggregate of 5 years (not including the time served in the status of an alien described in section 101(a)(15)(J) ), in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs.



(III) Nothing in this subparagraph may be construed to prevent the filing of a petition with the Attorney General for classification under section 204(a) , or the filing of an application for adjustment of status under section 245 , by an alien physician described in subclause (I) prior to the date by which such alien physician has completed the service described in subclause (II).


(IV) The requirements of this subsection do not affect waivers on behalf of alien physicians approved under section 203(b)(2)(B) before the enactment date of this subsection. In the case of a physician for whom an application for a waiver was filed under section 203(b)(2)(B) prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to section 203(b)(2)(B) except that the alien is required to have worked full time as a physician for an aggregate of 3 years (not including time served in the status of an alien described in section 101(a)(15)(J) ) before a visa can be issued to the alien under section 204(b) or the status of the alien is adjusted to permanent resident under section 245 .


(C) Determination of exceptional ability. - In determining under subparagraph (A) whether an immigrant has exceptional ability, the possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning or a license to practice or certification for a particular profession or occupation shall not by itself be considered sufficient evidence of such exceptional ability.

(3) Skilled workers, professionals, and other workers.-

(A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2):

(i) Skilled workers. - Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

(ii) Professionals. - Qualified immigrants who hold baccalaureate degrees and who are members of the professions.

(iii) Other workers. - Other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

(B) Limitation on other workers. - Not more than 10,000 of the visas made available under this paragraph in any fiscal year may be available for qualified immigrants described in subparagraph (A)(iii).

(C) Labor certification required.- An immigrant visa may not be issued to an immigrant under subparagraph (A) until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 212(a)(5)(A) .

(4) Certain special immigrants. - Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified special immigrants described in section 101(a)(27) (other than those described in subparagraph (A) or (B) thereof), of which not more than 5,000 may be made available in any fiscal year to special immigrants described in subclause (II) or (III) of section 101(a)(27)(C)(ii) , 2/ and not more than 100 may be made available in any fiscal year to special immigrants, excluding spouses and children, who are described in section 101(a)(27)(M) .

(5) Employment creation. -


(A) In general. - Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial 4/ enterprise (including a limited partnership)--


(i) 4/ in which such alien has invested (after the date of the enactment of the Immigration Act of 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and

(ii) 4/ which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters).


(B) Set-aside for targeted employment areas.-

(i) In general. - Not less than 3,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who 4/ invest in a new commercial enterprise described in subparagraph (A) which will create employment in a targeted employment area.


(ii) Targeted employment area defined. - In this paragraph, the term ``targeted employment area'' means, at the time of the investment, a rural area or an area which has experienced high unemployment (of at least 150 percent of the national average rate).


(iii) Rural area defined. - In this paragraph, the term ``rural area'' means any area other than an area within a metropolitan statistical area or within the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States).

(C) Amount of capital required. -

(i) In general. - Except as otherwise provided in this subparagraph, the amount of capital required under subparagraph (A) shall be $1,000,000. The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified under the previous sentence.

(ii) Adjustment for targeted employment areas.- The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required under subparagraph (A) that is less than (but not less than 1/2 of) the amount specified in clause (i).

(iii) Adjustment for high employment areas.-In the case of an investment made in a part of a metropolitan statistical area that at the time of the investment -

(I) is not a targeted employment area, and

(II) is an area with an unemployment rate significantly below the national average unemployment rate, the Attorney General may specify an amount of capital required under subparagraph (A) that is greater than (but not greater than 3 times) the amount specified in clause (I).

(D) 4/ Full-time employment defined.--In this paragraph, the term `full-time employment' means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.


(6) Special rules for "k" special immigrants. -

(A) Not counted against numerical limitation in year involved. - Subject to subparagraph (B), the number of immigrant visas made available to special immigrants under section 101(a)(27)(K) in a fiscal year shall not be subject to the numerical limitations of this subsection or of section 202(a).

(B) Counted against numerical limitations in following year.-

(i) Reduction in employment-based immigrant classifications. - The number of visas made available in any fiscal year under paragraphs (1), (2), and (3) shall each be reduced by 1/3 of the number of visas made available in the previous fiscal year to special immigrants described in section 101(a)(27)(K) .

(ii) Reduction in per country level. - The number of visas made available in each fiscal year to natives of a foreign state under section 202(a) shall be reduced by the number of visas made available in the previous fiscal year to special immigrants described in section 101(a)(27)(K) who are natives of the foreign state.

(iii) Reduction in employment-based immigrant classifications within per country ceiling. - In the case of a foreign state subject to section 202(e) in a fiscal year (and in the previous fiscal year), the number of visas made available and allocated to each of paragraphs (1) through (3) of this subsection in the fiscal year shall be reduced by 1/3 of the number of visas made available in the previous fiscal year to special immigrants described in section 101(a)(27)(K) who are natives of the forei gn state.(C)[Subparagraph (C) was stricken by Sec. 212(b) of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416 , 108 Stat. 4314, Oct. 25, 1994)]

[simple1]

great, thanks to lost_in_migration for posting INA.
sorry snathan I should have posted it earlier myself. it will answer all your questions.

If you are USC and then you are talking abou the FB2. Not for the GC holder. So will have to wait for years.

[lost_in_migration]

simple1 copy INA in your very 1st and 2nd post or else it would be lost somewhere halfway.

great, thanks to lost_in_migration for posting INA.
sorry snathan I should have posted it earlier myself. it will answer all your questions.

[h1techSlave]

Can you add another question in the poll?

Would you be willing to contribute towards this work? (Hiring a lawyer/FOIA request etc.)

Done, added poll.

[simple1]

I am unable to edit the poll. Can Admin edit the poll and prefix the question with word financial.

btw, I used word support in the poll to refer "financial support" to IV regarding this clarification issue..

Can you add another question in the poll?

Would you be willing to contribute towards this work? (Hiring a lawyer/FOIA request etc.)

[lost_in_migration]

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

From the text highlighted above can we infer that EB principal applicant's PD will be applied to EB dependent (irrespective of whether the visa number is taken from EB or FB) ?

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=c9fef57852dc066cfe16a4cb81683 8a4
203(d) => Treatment of Family Members. - A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

same status can be EB GC or just GC ?? If it is EB GC then this thread can RIP

[vbkris77]

I saw someone already asking this question in Ron Gotcher's immigration forum.

http://www.immigration-information.com/forums/showthread.php?t=7988

That is a good thing. Lets keep our fingers crossed.

[Sheetal_MA]

The analysis on the FB movement by simple1, et al is based on the current VB. This will result in severe retrogression in the FB categories. Are you willing to assume the burden that comes with classification in the FB category - separation of family while waiting for PD to be current? Think of what it will do to someone who comes to US on GC through the FB category and later gets married to an Indian citizen. The current wait time for that individual is 5+ years and the individual cannot stay with spouse for a long stretch otherwise he/she loses the GC or does not meet minimum residency requirement for citizenship.

[simple1]

Families will never get separated. Please don't use emotional wordings without basis.

GC holder's marriage (regardless of their stream) to indian citizen (derivative) will make the indian citizen wait for atleast 5 years ( based on current vb date for fb2a or gc sponsor becoming citizen in 5 years ). Why are you tying N400 eligibility with this ? regardles of the interpretation any gc have to show ( 5years presence, atleast 6+ months a year, 30 months etc) to become eligible to become USC ? You could be referring to a special and/or complex case of lot or large reentry permit ?

Expect for some rare special cases of long reentry permits, This interpretation I am suggesting will neither enhance their condition or make it worse for any derivative already-in or newly-entering FB2A.

I read some were 88k visas are available for FB2A. I think they are safe.

Look at the EB3 mess. Is it in any way fair for EB-primary to wait that long ?


The analysis on the FB movement by simple1, et al is based on the current VB. This will result in severe retrogression in the FB categories. Are you willing to assume the burden that comes with classification in the FB category - separation of family while waiting for PD to be current? Think of what it will do to someone who comes to US on GC through the FB category and later gets married to an Indian citizen. The current wait time for that individual is 5+ years and the individual cannot stay with spouse for a long stretch otherwise he/she loses the GC or does not meet minimum residency requirement for citizenship.

[simple1]

Thanks a lot lost_in_migration for providing supporting docs.

I strongly believe none will be affected with this correct interpretation of EB dependents must not use ebquota.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

From the text highlighted above can we infer that EB principal applicant's PD will be applied to EB dependent (irrespective of whether the visa number is taken from EB or FB) ?

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=c9fef57852dc066cfe16a4cb81683 8a4
203(d) => Treatment of Family Members. - A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

same status can be EB GC or just GC ?? If it is EB GC then this thread can RIP

[simple1]

Thanks to basha for asking question to an attorney. Hopefully Ron answers it.
Thanks to vbkris77 for posting it in this thread.

VB Core,
Is it possible to get a quick clarification from a forum-attorney ?

I saw someone already asking this question in Ron Gotcher's immigration forum.

http://www.immigration-information.com/forums/showthread.php?t=7988

That is a good thing. Lets keep our fingers crossed.

[simple1]

http://www.state.gov/documents/organization/87867.pdf

status: refers to immigrant status like lawfully admitted, parolee, denied, etc. not refering to preference category (fb eb etc).

ORDER OF CONSIDERATION: just means priority date of primary, which I agree derivative can and must use primary's PD. All I am contesting is about quota.

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=c9fef57852dc066cfe16a4cb81683 8a4[/url]
203(d) => Treatment of Family Members. - A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

same status can be EB GC or just GC ?? If it is EB GC then this thread can RIP

[a2006]

Thanks a lot lost_in_migration for providing supporting docs.

I strongly believe none will be affected with this correct interpretation of EB dependents must not use ebquota.
What about EB applicants from non retrogressed countries/EB1? The primary gets GC in 6 months and the family will have to wait in FB quota?

[vbkris77]

What about EB applicants from non retrogressed countries/EB1? The primary gets GC in 6 months and the family will have to wait in FB quota?

Hello, we are not asking for a change. We are asking for a correct interpretation of the law.

[a2006]

Hello, we are not asking for a change. We are asking for a correct interpretation of the law.
I am not disputing your interpretation of the law. I just wanted to clarify its effect on people from countries whose numbers are not retrogressed.

[dvb123]

I know that IV core members are busy with their own jobs and helping with IV but I think this is an important discussion because it can be done with an administrative fix. If primary applicants are allotted GC's from EB 1,2 and 3 and dependents from FB2A it saves a lot of visa numbers. Somebody pls contact IV core directly and get them involved in this discussion.

This concept is not unique and is being done for age out children before CSPA (Child status protection act) and for children of US citizens and permanent residents who get married before getting GC.


PLS SEE THIS VERY IMPORTANT ARTICLE

http://www.ilw.com/articles/2004,1221-wheeler.shtm

[simple1]

Hi,

Sent email to IV core emails listed in
http://immigrationvoice.org/index.php?option=com_content&task=view&id=57&Itemid=49

Thanks,


I know that IV core members are busy with their own jobs and helping with IV but I think this is an important discussion because it can be done with an administrative fix. If primary applicants are allotted GC's from EB 1,2 and 3 and dependents from FB2A it saves a lot of visa numbers. Somebody pls contact IV core directly and get them involved in this discussion.

This concept is not unique and is being done for age out children before CSPA (Child status protection act) and for children of US citizens and permanent residents who get married before getting GC.


PLS SEE THIS VERY IMPORTANT ARTICLE

http://www.ilw.com/articles/2004,1221-wheeler.shtm

[simple1]

non retrogressed countries: The delay will be none (normally) / fewmonths (worst case ) as both their eb and fb volumes are minimal.

Let us not forget we are talking about FB2A cat, with large quota of 114,200. plus it gets unused FB1.

Plus it is fair to interpret the law as it is.

I am not disputing your interpretation of the law. I just wanted to clarify its effect on people from countries whose numbers are not retrogressed.

[a2006]

non retrogressed countries: The delay will be none (normally) / fewmonths (worst case ) as both their eb and fb volumes are minimal.

Let us not forget we are talking about FB2A cat, with large quota of 114,200. plus it gets unused FB1.

Plus it is fair to interpret the law as it is.
I think the FB2A category has a cutoff date of 08OCT04 according to the current bulletin.
http://travel.state.gov/visa/frvi/bulletin/bulletin_4454.html

[simple1]

The derivative files using primary's PD. read all posts in this thread, the I485 form and INA. it is clearly in the law.

This thread is discussing about quota. not PD.

In essence none will be affected ( ofcourse EBdependents and existing FB2A may get delayed slightly , that is ok)

I think the FB2A category has a cutoff date of 08OCT04 according to the current bulletin.
http://travel.state.gov/visa/frvi/bulletin/bulletin_4454.html

[a2006]

The derivative files using primary's PD. read all posts in this thread, the I485 form and INA. it is clearly in the law.

This thread is discussing about quota. not PD.

In essence none will be affected ( ofcourse EBdependents and existing FB2A may get delayed slightly , that is ok)
Ok, I am still trying to figure out what you said about non retrogressed countries/EB1. A person in EB1 files for labor and gets approved in a year. Suppose he has a priority date of 08, his dependents will have to wait for at least 4 years according to the current bulletin for Family 2A. Am I missing something here?

[simple1]

Your original question did not refer to EB1.

non-retrogressed countries with any eb(1,2,3) dependents:
====================================
I did answer your question about non-retrogressed countries earlier. there will not be a lot of diffrence for them. example: germany ebdependent (1,2,3) moving from ebquota to germany fb2a. both are current now.

retrogressed (india, china etc) countries with eb (2,3) dependents:
==========================================
I have answered this in another post. The impact will be minimul. I expect them to wait 7 years in place of 6 years now. again the primary can become citizen quickly and move them from FB2A -> FB1. That doesnt mean they are affected, wont they have no strings attached EAD/AP ?

retrogressed (india, china etc) countries with eb1 dependents:
==========================================
yes, there will be a longer wait (they will not get current special treatment. they will be sharing FB2A-country-specific-quota with eb2-samecountry dependents, eb3-samecountry dependents, and other fb2a new and existing, etc) . That doesnt mean they are affected, wont they have no strings attached EAD/AP ?

Dont you think that is were they rightfully belong ?

Ok, I am still trying to figure out what you said about non retrogressed countries/EB1. A person in EB1 files for labor and gets approved in a year. Suppose he has a priority date of 08, his dependents will have to wait for at least 4 years according to the current bulletin for Family 2A. Am I missing something here?

[a2006]

I think IV core has some concerns regarding the correctness of the legal advise that you received from your attorney. Let us wait for them to clarify.

[simple1]

thanks IVcore for looking into the request.

I would like to know your response. Could you please post it in this thread ? possibly with references you received from the attorney ?

I think IV core has some concerns regarding the correctness of the legal advise that you received from your attorney. Let us wait for them to clarify.

[a2006]

http://immigrationvoice.org/forum/showthread.php?p=338410#post338410

[simple1]

I am unable to get into the donar thread. I did donate yesterday.

Could you please post the information in this thread. or Admin provide me access to donar thread ?

http://immigrationvoice.org/forum/showthread.php?p=338410#post338410

[simple1]

got PM with the following quote.

Looking forward to have access to donar-thread on monday to find out the exact INA language that counts ebdependent in ebquota, that the PM refers to.

Have a good weekend.

The lawyer of simple1 is not correct. INA specifically has the language for counting all immigrants (including spouses and children) towards numerical limits, and, we have been working to include provisions to eliminate counting depents towards numerical limits. Doing such extra effort as mentioned in the first post of the thread is not going to be helpful. When there is a bill we should be pushing towards not counting dependents and it is more straightforward. That will take care of the backlog issues to some extent. Admin fixes do not change laws, so admin fix for this is not possible as some suggested

[hiralal]

even if the law was interpreted incorrectly by the lawyer ...I wonder if they can do a admin fix ??? this is definitely beneficial for many people ..for e.g. those who are homeowners, etc etc ...atleast the primary spouse can change fields etc etc
...wonder if we should have a campaign for this ?

[Naveen]

Guys -- A Person who files for I-140/I-485 under EB1/2/3 is considered an EB Based Principal Beneficiary. All his/her dependents are termed derivative beneficiaries...meaning they eligible for lawful permanent residence under the same employment-based preference category as the principal beneficiary. The derivatives will have all the attributes of Principal and hence counted against EB quota.

To oversimplify -- All the benefits of the Principal is passed on to the dependents. Principal is EB2 and so the child even though he is 6 months old is also eligible for EB2. hence the term Principal beneficiary and Derivative beneficiary.

[simple1]

Hello Sir,

While opinions are good and welcome. My requirement is to see the exact INA language.

I have read the INA Sec 203 multiple times, I could not find the link between ebquota and ebdependents. May be I am missing it. Can some one show the exact lines in INA ?

Think about this "5 year old derivative kid" is counted in ebquota. How did the kid qualify for ebquota ? The law clearly says "to qualified immigrants who are aliens described in any of the following subparagraphs" and then goes on to say the exact qualification.

Don't take me out of context. I do want the kid to get greencard, however I am against the kid being counted in ebquota.

I am yet to get the access to ( I am a recent donor ) donor thread that refers the exact INA language. Can some other donor post the exact INA language in this thread ?

Thanks

Guys -- A Person who files for I-140/I-485 under EB1/2/3 is considered an EB Based Principal Beneficiary. All his/her dependents are termed derivative beneficiaries...meaning they eligible for lawful permanent residence under the same employment-based preference category as the principal beneficiary. The derivatives will have all the attributes of Principal and hence counted against EB quota.

To oversimplify -- All the benefits of the Principal is passed on to the dependents. Principal is EB2 and so the child even though he is 6 months old is also eligible for EB2. hence the term Principal beneficiary and Derivative beneficiary.

[Naveen]

Hello Sir,

While opinions are good and welcome. My requirement is to see the exact INA language.

I have read the INA Sec 203 multiple times, I could not find the link between ebquota and ebdependents. May be I am missing it. Can some one show the exact lines in INA ?

Think about this "5 year old derivative kid" is counted in ebquota. How did the kid qualify for ebquota ? The law clearly says "to qualified immigrants who are aliens described in any of the following subparagraphs" and then goes on to say the exact qualification.

Don't take me out of context. I do want the kid to get greencard, however I am against the kid being counted in ebquota.

I am yet to get the access to ( I am a recent donor ) donor thread that refers the exact INA language. Can some other donor post the exact INA language in this thread ?

Thanks

Hello Madam,

22 CFR 42.32 a(2),b(2),C(2) page 224

http://edocket.access.gpo.gov/cfr_2005/aprqtr/pdf/22cfr42.32.pdf

(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based first preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.


Hope this helps you sleep better at night.

Thanks

P.S: This is just to prove your attorney is wrong. Now thanks for donating and lets fight to remove the country limits and exempt dependents from the quota. Are you with us?

[vbkris77]

OK Guys, it is not part of INA but part of CFR which is I believe admin decision. But I leave it to IV core to decide.

Below is the link

http://cfr.vlex.com/vid/42-32-employment-based-preference-immigrants-19720782



TITLE 22 - FOREIGN RELATIONS

CHAPTER I - DEPARTMENT OF STATE

SUBCHAPTER E - VISAS

PART 42 - VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

subpart d - IMMIGRANTS SUBJECT TO NUMERICAL LIMITATIONS

42.32 - Employment - based preference immigrants.

Aliens subject to the worldwide level specified in section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as indicated below.

(a) First preferencePriority workers(1) Entitlement to status. An alien shall be classifiable as an employment-based first preference immigrant under INA 203(b)(1) if the consular office has received from INS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such Preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(1).

(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based first preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.

(b) Second preferenceProfessionals with advanced degrees or persons of exceptional ability(1) Entitlement to status. An alien shall be classifiable as an employment-based second preference immigrant under INA 203(b)(2) if the consular officer has received from INS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(2).

(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based second preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.

(c) Third preferenceSkilled workers, professionals, other workers(1) Entitlement to status. An alien shall be classifiable as an employment-based third preference immigrant under INA 203(b)(3) if the consular officer has received from INS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(3).

(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based third preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.

[simple1]

thanks vbkris,
I was about to post similar reply.

Naveen,
We need INA language. nothing more nothing less.

All,
As of this post. I could not find the law linking ebdependents with ebquota.

[Naveen]

thanks vbkris,
I was about to post similar reply.

Naveen,
We need INA language. nothing more nothing less.

All,
As of this post. I could not find the law linking ebdependents with ebquota.

wow its pouring reds and uncivilised comments for pointing out this. Ok. well i am going to continue anyway!

INA: ACT 203 - ALLOCATION OF IMMIGRANT VISAS \ Act 203(c) \ Section (d)

http://www.uscis.gov/propub/template.htm?view=document&doc_action=setDoc&doc_keytype=tocid&doc_key=2dae084742aac42ac9134cc4466287e7

(d) Treatment of Family Members. - A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

[number30]

Hello Sir,

While opinions are good and welcome. My requirement is to see the exact INA language.

I have read the INA Sec 203 multiple times, I could not find the link between ebquota and ebdependents. May be I am missing it. Can some one show the exact lines in INA ?

Think about this "5 year old derivative kid" is counted in ebquota. How did the kid qualify for ebquota ? The law clearly says "to qualified immigrants who are aliens described in any of the following subparagraphs" and then goes on to say the exact qualification.

Don't take me out of context. I do want the kid to get greencard, however I am against the kid being counted in ebquota.

I am yet to get the access to ( I am a recent donor ) donor thread that refers the exact INA language. Can some other donor post the exact INA language in this thread ?

Thanks

I spoke with our attorney
He said
INA Sec 203 talks only about the eligibility to apply the I-485. But the visa number is derived from a relationship to Principal applicant of green card. This is true for all categories Including investor, asylum, Employment categories. Please note that It is Dept of State that is responsible for this allocation not USCIS.

[morchu]

See the post of "vbkris77".

The specific regulation is at: 22CFR 42.32
(http://edocket.access.gpo.gov/cfr_2007/aprqtr/pdf/22cfr42.32.pdf)

And it specifically states that the derivative is entitled to same "classification".

=======
(2) Entitlement to derivative status.
.......is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
=======



I spoke with our attorney
He said
INA Sec 203 talks only about the eligibility to apply the I-485. But the visa number is derived from a relationship to Principal applicant of green card. This is true for all categories Including investor, asylum, Employment categories. Please note that It is Dept of State that is responsible for this allocation not USCIS.

[simple1]

22CFR 42.32 is not INA.
22CFR 42.32 is not the law.
INA is the law.


See the post of "vbkris77".

The specific law is at: 22CFR 42.32
(http://edocket.access.gpo.gov/cfr_2007/aprqtr/pdf/22cfr42.32.pdf)

And it specifically states that the derivative is entitled to same "classification".

=======
(2) Entitlement to derivative status.
.......is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
=======

[morchu]

Well since INA doesnt specifically state anything regarding this, the regulation CFR takes over.
22CFR 42.32 is not INA.
22CFR 42.32 is not the law.
INA is the law.

[vbkris77]

(d) Treatment of Family Members. - A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.


This basically tells me that they need to be given the same status only if they can't given immigrant visa in other category. But if they can be, why should they be used in this category? As someone said earlier, FB for Family is actually better than EB2. So this basically rules out their rational on giving EB2, EB3 dependents on this VISA.

I am not talking about EB1 here.

Naveen, I haven't given you any Reds. I feel sorry for your situation. Guys, lets discuss and analyze in a constructive way and don't go personal. None of us here will get GC twice by chasing someone's moral down..

[simple1]

wow its pouring reds and uncivilised comments for pointing out this. Ok. well i am going to continue anyway!.

That is not me.

http://www.uscis.gov/propub/template.htm?view=document&doc_action=setDoc&doc_keytype=tocid&doc_key=2dae084742aac42ac9134cc4466287e7[/url]

(d) Treatment of Family Members. - A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

same status = denied, paroled etc.
same order of consideration=Priority date which depends on petition for both primary and derivative.
I agree with the above two.

"respective subsection:" here means derivative’s corresponding/respective subsection (family) not primary's or petition's. It is the situation of individual that matters not primary or petition.

Take time to read (b) Preference Allocation for Employment-Based Immigrants.
You will find that the eligibility for EBvisa and quota usage are clearly documented. None other than the primary can use the quota. The ebdependent cannot get an ebvisa. so ebdependent cannot use ebquota.

[simple1]

Well since INA doesnt specifically state anything regarding this, the regulation CFR takes over.

Our focus of discussion is ebquota, how much and who is eligible. That is clearly documented in INA.

INA also clearly describes family based.

[simple1]

Agreed it is the state dept not uscis.

We should not mix the interpretation of eb2/3 visas with other immigrant visas including other eb due to perm.

Could Please ask the lawyer this following question about statedept eb2/3 visa allocation to non-perm derivatives ?
--
* eb 2/3 generally require perm except for very rare cases. right ?
The employer petitions for 1 permanent-employee. With assurance that the 1 person doesn’t displace local workforce (existing citizen and gc). How come state department allocates additional visa (more than approved) to derivative(s) who is not "perm labor certified" from a quota/poll (eb2/3) that mandates labor market test like perm ? (while the actual qualification is fb2a)

* State department also burns the eb2/3 visa allocated for US-businesses to bring in much needed skilled eb2/3 labor ? while most real primaries wait, the visa gets allocated to non-productive derivatives ?

Is state dept making mistake ?
--




I spoke with our attorney
He said
INA Sec 203 talks only about the eligibility to apply the I-485. But the visa number is derived from a relationship to Principal applicant of green card. This is true for all categories Including investor, asylum, Employment categories. Please note that It is Dept of State that is responsible for this allocation not USCIS.

[simple1]

I spoke with our attorney
He said
INA Sec 203 talks only about the eligibility to apply the I-485. But the visa number is derived from a relationship to Principal applicant of green card. This is true for all categories Including investor, asylum, Employment categories. Please note that It is Dept of State that is responsible for this allocation not USCIS.

The relationship with the principal/primary doesn’t make derivative eligible for same visa as primary.

EB1, EB2, EB3 are also visas. with specific qualifications like H1 and L1.

H1b dependent gets h4 (different visa from primary) and not counted in h1b quota.
Same applies with L1( dependent doesnt get L1). Same applies here, the dependent/derivative is not eligible for **same** immigrant visa type/preference. While h4/L2 has no quota and is of temporary nature. The FB2A has quota and is permanent. That is the only difference.

It is the situation of the dependent/derivative that matters. So FB2A is the right category.

[simple1]

Guys,

VISA BULLETIN FOR JUNE 2009 sets back EB2 priority back to 01JAN00.

Some thing needs to be done. The easist will be not counting ebdependents in ebquota. This should be very easy. There is no INA law linking ebquota with ebdependents.

I need IV Core help for this.

[morchu]

Is it still not clear for you? eb-dependents are NOT eligible for F2A.
We have to follow the regulation when law is not clear and the regulation (CFR22) mentioned specifically that eb-dependents are eligble for EB-category. Regulations and interpretations are there for a reason, and it has to be followed when law is not clear.

I agree that INA doesnt specifically says that, but at the same time INA specifically rules out eb-dependents from F2A also. To be eligible for F2A you should be dependent of a permanent resident "at the time of application".

You should probably stream line your effort to not count eb-dependents in any visa-numbers (since neither the regulation or law is clear on that part).

You are still under a mis-concept that every word and sentence has to be quoted in "INA", and can ignore all official regulations and interpretations.

Guys,

VISA BULLETIN FOR JUNE 2009 sets back EB2 priority back to 01JAN00.

Some thing needs to be done. The easist will be not counting ebdependents in ebquota. This should be very easy. There is no INA law linking ebquota with ebdependents.

I need IV Core help for this.

[vbkris77]

You just typed the message in my head.. Can IV Take this as a bullet and campaign saying since it is not clear in law and cfr, Give us the benefit of doubt?

[simple1]

CFR22 is not the law. INA is the law. I could not find it in INA, that is all we need.

Honestly, I dont care if they are eligible for FB2A.
All I care is eb-dependents are not eligible for EBquota.

why are you quoting and supporting the official mis interpretation above the actual law ?



Is it still not clear for you? eb-dependents are NOT eligible for F2A.
So we have to follow the regulation and the regulation (CFR22) mentioned specifically that eb-dependents are eligble for EB-category. Regulations and interpretations are there for a reason, and it has to be followed when law is not clear.

I agree that INA doesnt specifically says that, but at the same time INA specifically rules out eb-dependents from F2A also. To be eligible for F2A you should be dependent of a permanent resident "at the time of application".

You should probably stream line your effort to not count eb-dependents in any visa-numbers (since neither the regulation or law is clear on that part).

You are still under a mis-concept that every word and sentence has to be quoted in "INA", and can ignore all official regulations and interpretations.

[morchu]

Do you see anywhere in INA mentioning that "EB-dependents should NOT be filed in EB-category". How is it a "mis-interpretation" then?

Again like I mentioned before you can achive the same goal (which you care about) via a different approach.
...the official mis interpretation ...

[simple1]

we are talking about inclusion logic here. Not the exclusion logic.

I do see in sec 203 how some one becomes eligible for "eb quota". I dont see ebdependents there. I see only eb primary.

I am sorry, I am not interested to carry this debate forward for the fun of debating. I strongly urge you to read sec 203. Thanks for understanding.

Do you see anywhere in INA mentioning that "EB-dependents should NOT be filed in EB-category". How is it a "mis-interpretation" then?

Again like I mentioned before you can archive the same goal (which you care about) via a different approach.

[morchu]

:) my point was, regulations and interpretations are meant for the exact situation. Anyway I am also done in this topic. I have no personal interest on either EB-quota or FB-quota (why am i even here... nhaa?).

Thanks for a healthy discussion though.

we are talking about inclusion logic here. Not the exclusion logic.

[desi3933]

we are talking about inclusion logic here. Not the exclusion logic.

I do see in sec 203 how some one becomes eligible for "eb quota". I dont see ebdependents there. I see only eb primary.

I am sorry, I am not interested to carry this debate forward for the fun of debating. I strongly urge you to read sec 203. Thanks for understanding.

Read for yourself.

INA 203(d) Treatment of family members

A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 1101(b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.


This means that if primary beneficiary is using visa number from EB(2) classification then dependent(s) will also be using same classification as primary beneficiary (i.e. EB(2) in this example).


______________________
Not a legal advice
US citizen of Indian origin

[legal_gc_seeker]

Guys,

VISA BULLETIN FOR JUNE 2009 sets back EB2 priority back to 01JAN00.

Some thing needs to be done. The easist will be not counting ebdependents in ebquota. This should be very easy. There is no INA law linking ebquota with ebdependents.

I need IV Core help for this.

I don't think this is as simple as you say. Probably this would not affect young married couple who may have very young children and some may not even have one. This will affect children of those immigrants who are reaching 18 or 21. The law says you can get the dependent GC only if you are under 18 or 21. All of them will be affected. (I was not sure of the age if it was 18 or 21). They will be in limbo.

The best thing would be not to count them in any quota like they do for immediate relatives of citizens.