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humdesi
12-14-2007, 01:02 AM
Can somebody explain how unused visas are recaptured?
Will unused RoW EB-1 be given to the most retrogressed category (EB-2 India)? Or will they go to EB-2 RoW? What does the law state? Will per-country quotas apply when unused visas are used?

meridiani.planum
12-14-2007, 03:41 AM
Can somebody explain how unused visas are recaptured?
Will unused RoW EB-1 be given to the most retrogressed category (EB-2 India)? Or will they go to EB-2 RoW? What does the law state? Will per-country quotas apply when unused visas are used?

There is no clearcut guideline on how overflow is supposed to work. From people's experiences this is what USCIS has been doing:
unused RoW EB-1 goes to RoW EB-2
unused RoW eb-2 goes to RoW EB-3
until the last quarter of the year unused RoW EB-3 stayed unused.
In the last quarter, unused RoW EB-3 spill over into all other countries irrespective of whether the country has hit its cap or not. a complete free-for-all...

lazycis
12-14-2007, 09:15 AM
There is a clear guideline and it's written in the INA (Tiitle 8 USC 1153). You are correct that is goes from EB1-EB2-EB3 and that unused numbers are lost at the end:
http://www.law.cornell.edu/uscode/html/uscode08/usc_sup_01_8_10_12_20_II_30_I.html

(b) Preference allocation for employment-based immigrants
Aliens subject to the worldwide level specified in section 1151 (d) of this title 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, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver of job offer
(i) National interest waiver 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) Physicians working in shortage areas or veterans facilities
(I) In general 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.
(II) Prohibition No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under section 1154 (b) of this title, 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 1255 of this title, 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 1101 (a)(15)(J) of this title), 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) Statutory construction Nothing in this subparagraph may be construed to prevent the filing of a petition with the Attorney General for classification under section 1154 (a) of this title, or the filing of an application for adjustment of status under section 1255 of this title, 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) Effective date The requirements of this subsection do not affect waivers on behalf of alien physicians approved under subsection (b)(2)(B) of this section before the enactment date of this subsection. In the case of a physician for whom an application for a waiver was filed under subsection (b)(2)(B) of this section prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to subsection (b)(2)(B) of this section 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 1101 (a)(15)(J) of this title) before a visa can be issued to the alien under section 1154 (b) of this title or the status of the alien is adjusted to permanent resident under section 1255 of this title.
(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 1182 (a)(5)(A) of this title.

humdesi
12-15-2007, 05:18 PM
Legalese was never my strong point. Which part says that EB-1 unused must go to EB-2 of same category, and then to EB-3?

rajuram
12-15-2007, 09:50 PM
Simple and Short - Unused visas go to the TRASH CAN.

wandmaker
12-15-2007, 10:02 PM
Simple and Short - Unused visas go to the TRASH CAN.

Good one :)

lazycis
12-15-2007, 10:33 PM
Legalese was never my strong point. Which part says that EB-1 unused must go to EB-2 of same category, and then to EB-3?

(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),...

(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):

Gravitation
12-16-2007, 11:24 AM
Legalese was never my strong point. Which part says that EB-1 unused must go to EB-2 of same category, and then to EB-3?
None. USCIS has discretion on it and it has choses that to be the case.

pappu
12-16-2007, 01:05 PM
How are unused visas used?

Unused visas mean they are not used. :D

Pineapple
12-16-2007, 01:47 PM
Probably a dumb question which was answered before in some other thread.. but just so that I understand better:

Am I correct, or totally off base to say: There are no clear cut legislative guidelines regarding how cascaded visas or recaptured visas are to be used especially w.r.t country limits. USCIS has the discretion in how these visas are to be handed out..
If so, how has USCIS handed out these visas historically?


None. USCIS has descrition on it and it has choses that to be the case.

Gravitation
12-16-2007, 02:24 PM
Probably a dumb question which was answered before in some other thread.. but just so that I understand better:

Am I correct, or totally off base to say: There are no clear cut legislative guidelines regarding how cascaded visas or recaptured visas are to be used especially w.r.t country limits. USCIS has the discretion in how these visas are to be handed out..
If so, how has USCIS handed out these visas historically?

It's a bit more complicated than that:

Law comes from three sources:

Comman Law: Laws inherited from the british justice system (evolved over centuries).

Legislative Law: Laws passed by congress and signed by the Prez.

Regulatory Law: Regulations created by the regulatory agencies to implement the laws made by congress. Congres doesn't always finalize all the details to the last comma and leaves that work the relevant government agency. For example, FCC, SEC create regulations about how the congress' laws are to implemented. These regulations have to conform the laws passed by congress. These regulations have the force of law.

So when congress did not stipulate any specific overflow mechanism, it left it completely up to USCIS to work that out.

Historically EB2-RoW overflowed to EB2-India and EB3-Row overflowed to EB3-India. Soon after EB3-RoW was retrogressed, USCIS channelled EB2-RoW to EB3-RoW. This is expected to continue till EB3-RoW becomes current itself.

Therefore, if you're looking for any progress in PD, whether EB2 or EB3, the key parameter you should be watching is EB3-RoW cut-off. Only when this becomes current, others can even _think_ of nirvana. Without overflow of RoW's, both EB2-India and EB3-India cannot progress more than a day in every bulletin (at a average). EB3-Row moved a month and a half in Jan bulletin, which counts as a progress, however small, for everyone. That holds true -though not easy to intuit- for EB2-India as well!

Pineapple
12-16-2007, 02:46 PM
Thanks for clarifying..

aadimanav
12-16-2007, 03:38 PM
..and (in theory) where will EB1-India overflow go ?


EB1 ROW
|
|
EB1 India, China, Mexico, Phillipines
|
|
EB2 ROW
|
|
EB2 India, China, Mexico, Phillipines
|
|
EB3 ROW
|
|
EB3 India, China, Mexico, Phillipines
|
|
Recyle Bin (here are the visas we want to recapture)


Is the above flow correct?


It's a bit more complicated than that:

Law comes from three sources:

Comman Law: Laws inherited from the british justice system (evolved over centuries).

Legislative Law: Laws passed by congress and signed by the Prez.

Regulatory Law: Regulations created by the regulatory agencies to implement the laws made by congress. Congres doesn't always finalize all the details to the last comma and leaves that work the relevant government agency. For example, FCC, SEC create regulations about how the congress' laws are to implemented. These regulations have to conform the laws passed by congress. These regulations have the force of law.

So when congress did not stipulate any specific overflow mechanism, it left it completely up to USCIS to work that out.

Historically EB2-RoW overflowed to EB2-India and EB3-Row overflowed to EB3-India. Soon after EB3-RoW was retrogressed, USCIS channelled EB2-RoW to EB3-RoW. This is expected to continue till EB3-RoW becomes current itself.

Therefore, if you're looking for any progress in PD, whether EB2 or EB3, the key parameter you should be watching is EB3-RoW cut-off. Only when this becomes current, others can even _think_ of nirvana. Without overflow of RoW's, both EB2-India and EB3-India cannot progress more than a day in every bulletin (at a average). EB3-Row moved a month and a half in Jan bulletin, which counts as a progress, however small, for everyone. That holds true -though not easy to intuit- for EB2-India as well!

eeezzz
12-20-2007, 05:29 PM
28.6% Each for EB-1, 2, 3
Divide this 28.6% into 4 quarters/12 months so each quater/month has some quota.
If divide into 4, each category has 7.15% quota in each quarter.
There's limitation for each country.
Each quarter, when a country hits the limitation, cut-off date shows up to make sure no more applicant processed for that country.

Back to the old time, unused quota after 4th quarter are going to trash can, despite there's cut-off date for certain country or certain category.

In 4th quarter of 2007, according to USCIS, To not waste the quota, they set every category current. In this case, they process your application randomly or according to the receive date to USCIS regardless your EB category or country.

So very likely unused EB-1 quota go to EB-2 ROW, not China/India/... if the country limit is hit. If the country limit is not hit, EB-1 quota is for EB-1 until EB-1 for every country is current. There's no EB-1 ROW quota or EB-1 India quota.

Hopefully, at the 4th quarter, they will push a big forward again(but please don't do current in every category again, that is a mess) to ensure the quota for the year is fully used and not going to trashcan. And that opportunity is even to everyone if they pick up the case with in the cut off date randomly regardless receiving date and country. Or they process it according to receiving date, FIFO, country not matters.

If they think it was a mess for 2007 and not going to do it again. they might go back to old way and those unused quota are just gone to trashcan. This is the part we should work on and try to avoid.