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View Full Version : Specter's markup victimizes EB1-3, benefits EB5 unskilled workers


stucklabor
02-25-2006, 12:13 PM
All, Section 502 of Specter's bill strikes out Paragraph (a)(5) of 8 USC 1152 completely. This paragraph says that EB immigrants of each category are not subject to country quotas when additional visas are available. For instance, if EB2 visas are available, EB2 alone will not be subject to country quota. There is now no distinction between EB and FB immigrants. Country quotas will be applied strictly in each EB category and unused numbers will fall through to the next EB category.

However, in general, paragraphs (a)(2) and (a)(3) do say that country quotas will not apply when additional visas are available. All the unused EB1-3 visas when country quotas are applied, will now fall through to EB5 unskilled category. From additional language in Specter's markup, it appears that the EB5 unskilled workers are now defined as special immigrants, not subject to a country quota. So all the unused EB1-3 visas, after country quotas are applied, will now be used by special unskilled immigrants.

Here is the text from Specter's markup section 503, language re: unskilled workers. "Visas will be made available in a number not exceeding 30% of worldwide total, plus any visas not required for classes mentioned in paragraphs (1) through (4)...."


Here are paragraphs (a)(2) and (a)(3) from 8 USC 1152.

(2) Per country levels for family-sponsored and employment-based immigrants
Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 1153 of this title in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.
(3) Exception if additional visas available
If because of the application of paragraph (2) with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of section 1153 of this title for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter.

Here is the existing paragraph (a)(5) from 8 USC 1152, that is to be deleted. The paragraphs (1)..(5) of 8 USC 1153 (b) refer to the various EB categories, and in totality, it means that EB1 from the Rest of the World get first crack at unused EB1 after country quotas are applied, EB2 from ROW get first crack at unused EB2 after country quotas are applied etc.

(5) Rules for employment-based immigrants
(A) Employment-based immigrants not subject to per country limitation if additional visas available
If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 1153 (b) of this title for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.
(B) Limiting fall across for certain countries subject to subsection (e) of this section
In the case of a foreign state or dependent area to which subsection (e) of this section applies, if the total number of visas issued under section 1153 (b) of this title exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 1153 (b) of this title consistent with subsection (e) of this section (determined without regard to this paragraph), in applying subsection (e) of this section all visas shall be deemed to have been required for the classes of aliens specified in section 1153 (b) of this title.

MerciesOfInjustices
02-25-2006, 05:34 PM
Important point - we have to get Specter to modify this! These politicians! He must have been aware of the effects! We must oppose these provisions!
Skills have to be valued, and the provisions with respect to distribution percentages should be preserved! Fix the broken parts, not the parts that are not broken!

H1B-GC
02-25-2006, 05:53 PM
This is just partial increase for Skilled EB Visas.According to Specter's plan to increase the EB visas to 290K sounds interesting but look at the hard No.'s here.

New Plan : 15% of 290K = 43,500
Existing Plan : 28.6% of 140K = 40,040

So, increase of 3,460 visas for the skilled Visas.With the new country limit raised to 10%. The actual no. for Indian/chinese is paltry 346 visas for the whole year.What a Shame!!The Senator needs to hire a High School Math student to figure this issue.

ragz4u
02-25-2006, 06:12 PM
This is just partial increase for Skilled EB Visas.According to Specter's plan to increase the EB visas to 290K sounds interesting but look at the hard No.'s here.

New Plan : 15% of 290K = 43,500
Existing Plan : 28.6% of 140K = 40,040

So, increase of 3,460 visas for the skilled Visas.With the new country limit raised to 10%. The actual no. for Indian/chinese is paltry 346 visas for the whole year.What a Shame!!The Senator needs to hire a High School Math student to figure this issue.


At the same time we should not forget that
1) If/When labor substitution is banned, many labors coming out of PBEC/DBEC will be useless. My guess is this number will be big. How many folks from 2000/2001 are still in the same firm at the same position/salary?
2) With advanced degree in STEM + 3 years work-ex now not a part of this number, this will bring some relief
3) PhD's will not be counted against the cap

Wouldn't #1 and #2 above make a significant difference?

sai
02-25-2006, 06:33 PM
http://www.immigration-law.com/

Unfortunately, the Senator dropped from S. 1932 the provision on availability of I-485 filings for employment-based immigrants during the period of retrogression. We urge the Senator to reinstate this provision in the final draft of his bill before it is introduced to the Senate Judiciary Committee. Community leaders, please urgently contact the Senator's office to urge him to reinstate this provision.

H1B-GC
02-25-2006, 06:37 PM
At the same time we should not forget that
1) If/When labor substitution is banned, many labors coming out of PBEC/DBEC will be useless. My guess is this number will be big. How many folks from 2000/2001 are still in the same firm at the same position/salary?
2) With advanced degree in STEM + 3 years work-ex now not a part of this number, this will bring some relief
3) PhD's will not be counted against the cap

Wouldn't #1 and #2 above make a significant difference?

1) No one really knows on how the impact be when labor substitution is banned and how many beneficiaries be counted due to the change.The Edison,NJ based 420's will take collateral impact on this pending change.

2)But pls. take a note that about 40% of 290K(Taking into consideration half of worldwide EB visas go unused) unused visas will now go to EB5 category and not EB1-3 that earlier used to be.

3) I feel that by 2007 there will backlog elimination center for I-485 and FBI Name Check.you guys don't think this would be reality in near future waiting for 2-3 years for I-485 approval??USCIS adjudicating so many cases?? sorry but i'm pessimistic on this side.USCIS never were and never would be immigrant friendly.My $.02

mchundi
02-25-2006, 07:15 PM
At the same time we should not forget that
1) If/When labor substitution is banned, many labors coming out of PBEC/DBEC will be useless. My guess is this number will be big. How many folks from 2000/2001 are still in the same firm at the same position/salary?
2) With advanced degree in STEM + 3 years work-ex now not a part of this number, this will bring some relief
3) PhD's will not be counted against the cap

Wouldn't #1 and #2 above make a significant difference?
The most significant would still be the recaptured numbers.
--MC

xbohdpukc
02-25-2006, 10:29 PM
The most significant would still be the recaptured numbers.
--MC

and not counting dependents against the cap.

mchundi
02-26-2006, 12:32 AM
and not counting dependents against the cap.
Not sure if that one survives in the house.
--MC

xbohdpukc
02-26-2006, 12:49 AM
Not sure if that one survives in the house.
--MC

Speaking of the House we cannot be sure if anything survives there, so this provision is neither better nor worse any other.

logiclife
02-26-2006, 02:57 AM
Recaptured visas is not going to be a big impact(although its very welcome) as the Nurses and FB immigrants have been eating away at the leftover visas from previous years and there arent many visas to recapture.

Schedule A(for nurses etc) that is exempt from cap eats away the unused EB visa numbers FIRST before they go outside of all quota and generate new numbers for nurses. So there may not be much to recapture.

However, its hard to argue against it since it sounds to reason that those numbers would have been used anyways in previous years had Dept of labor and USCIS been doing their jobs properly and speedily.

catch22
02-27-2006, 02:12 PM
No amount of increase in visa numbers / Not counting spouses of Employment based applicants is of any use to Indian/Chinese/Philiphines legal immigrants.

Reason - Specter's proposed bill not only caps the per country limit at 10%, but also strikes down an entire key paragraph (see below) in the INA. Sec 202 that was inserted due to AC21 act.

(5) 2/ RULES FOR EMPLOYMENT-BASED IMMIGRANTS-


(A) EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE- If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 203(b) for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.


(B) LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (e)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section 203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b)consistent with subsection (e) (determined without regard to this paragraph),in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens specified in section 203(b).

If the above provisions are struck, visas will not rollover from other countries to China/India/Philiphines (The Usual Suspects for retrogression) in the last quarter.