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Old 12-03-2009, 07:56 PM
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Default Ground Reality for EB3 applicants

Following text is pasted from ImmInfo Newsletter: Just How Bad is the Backlog?

letís now take a look at the more complex problem of EB3 backlogs. Again, we will use the backlog information for EB3 visas shown on the CIS website, arranged, by priority dates, area of charge and year:

? Not able to paste the table ?
but this is available at this link

Availability is a bit more complex in this situation. Recall that the third employment based preference category (EB3) is allocated roughly 40,000 visas annually. These visas are issued on the basis of those with the oldest priority dates receiving visas first. There is, however, a single state limit that prohibits no more than seven (7%) of the total number of visas from being issues to persons born in a single country. This means that no more than 9,800 visas may be issued to persons born in any single country. Note that it is country of birth that determines chargeability, not country of citizenship.

This 9,800 limit applies to all employment based applicants from a single country, including first, second, third, fourth, and fifth preferences. When a country is subject to the single state limit, the 9,800 maximum is divided the same way that the five preferences are divided within the overall EB quota. That is, each of the first three preferences receive 28.8% of the total. For EB3 purposes, this means that there is a maxium allocation of about 2,822 visas annually for each country subject to the single state limit, provided there are that many applicants with sufficiently early priority dates.

Letís take a quick look at how this gets applied to the quota. We start with an overall allocation of 40,000 visas. The single state limits are not guarantees. They are maximum limits imposed on people born in those countries, within the overall limit. Within the 40,000 annual allocation, visas first go to those with the oldest priority dates. If, however, 2,822 people from a single country (including dependents) receive visas in a single fiscal year, then no additional applicants chargeable to that country may receive visas until the new quota becomes available in the next fiscal year. Unlike the second employment based preference category (EB2), there are no unused visas from the Worldwide category to be made available to the single state limited countries.

At the end of the first quarter of fiscal year 2010, the Worldwide EB3 cutoff date stands at June 1, 2001. By law, no more than 27% of the overall quota may be allocated in any of the first three quarters. This means that approximately 10,800 visas will be used in EB3 during the first quarter. This figure is greater than the total number of EB3 AOS applicants shown in the CIS backlog charts (8,884) for all applicants with priority dates earlier than 2002 and is further evidence that those charts do not reflect the full size of the demand.

The Visa Office had earlier said that they expected to see the cutoff date for Worldwide EB3 move into early 2006 by spring of next year. This seems likely to happen. For single state limited country applicants, however, the story is very different.

For EB3, the maximum number of visas that may be issued in a single year to applicants from single state limited countries is 2,822 visas. Initially, India and possibly Mexico will have individual cutoff dates that will lag behind the Worldwide EB3 cutoff date. As the Worldwide cutoff date advances, Mexico should catch up, but then the Philippines will start to lag.

The country that is going to see the worst delays, by far, is India. Letís take another look at the CIS reported demand for EB3 India AOS applicants, understanding that these numbers represent minimum demand and that the actual demand is greater:

? Not able to paste the table ?
but this is available at this link

If we subtract 2,822 visas per year from these total, we see that all of the pre-2002 India EB3 cases shown here should be resolved before the end of FY 2010. This is where things slow down. At the start of FY 2011, there would still be 7,756 AOS applicants in line with priority dates for 2002. Reducing this number at a rate of 2,822 visas per year it will take almost three and a half years to eliminate all of the currently pending (and reported) Indian EB3 adjustment of status cases. This would be some time in the late winter or early spring of 2015 . At that point, the Indian EB3 cutoff date would likely move into 2003. At that rate, it would then be approximately 2020 before the cutoff date would move into 2004. There isnít much point in taking this exercise any further. It is obvious that Indian EB3 is not going to go anywhere absent legislative relief.

Indian EB3 applicants have three options:

1. Stay the course and wait.
2. Hope for legislative relief.
3. Find a way to upgrade to EB2.

Unfortunately, there isnít a fourth option.

Good News for EB2

Letís take a look at the backlog information for EB2 visas shown on the CIS website, arranged, by priority dates, area of charge and year:

? Not able to paste the table ?
but this is available at this link

The Worldwide allocation for EB2 is roughly 40,000 visas annually, plus all unused EB1 numbers. For fiscal year 2008, a total of 35,590 employment-based first preference visas were issued. Due to the failure of the CIS to adjudicate enough family based adjustment of status cases, about 25,000 visas from that quota fell over into the employment based quota and a total of 70,135 EB2 visas were issued. For fiscal year 2009, there were considerably fewer family based visas available for use by the EB categories. For FY 2010, the State Department estimates that there will be only about 5,000 such additional visas available. For our purposes, we can assume that EB1 will have about 5,000 leftover visas and another 5,000 will become available from the family based quota. This means that the EB2 visa availability will be approximately 50,000 for this fiscal year.

If we assume that all of the demand shown on the CIS website remains, and that there is no additional demand, the total of pre-approved EB2 cases pending before the CIS with priority dates earlier than 2007 is almost 52,000. In reality, this demand represents about two-thirds of the actual demand, so the likelihood is that the EB2 cutoff date will not move beyond May, 2006 by the end of fiscal year 2010 (September 30, 2010).

If the EB2 cutoff date does reach May, 2006 by the end of FY 2010, then it would likely reach the end of calendar year 2008 (and probably go into early 2009) by the end of fiscal year 2011.

Good Luck TO ALL...
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