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View Full Version : Loss of Soft Country Cap Will Definitely Be a Problem


stucklabor
03-22-2006, 05:01 PM
All, our last interpretation has been confirmed by one immigration lawyer, but we are trying to get more opinions. It looks like all EB visas will now have a hard 10% country cap.

Here is the latest interpretation of the country quotas. The loss of 202(a)(5) will definitely be a problem. I can't write any plainer than this, so if someone else wants to take a shot at explaining, please do.

Sec 202(a)(3):
(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 203 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.

Our analysis:
This paragraph clubs together EB (subsection b of Sec 203) and Family-based (subsection a of Sec 203) immigrant visas. So if there are excess visas under both in a calendar quarter, then country quotas (paragraph 2 above) do not apply. So this leaves a lot of room for creative interpretation. Under a strict reading, the country quotas would not apply only when BOTH EB and FB categories have excess visas. FB has been oversubscribed for 10+ years.

Sec 202(a)(5):
(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.

Our analysis:
Excess visas in each EB category will first be given to oversubscribed countries in that same category. E.g., EB2 excess visas will be given to EB2 applicants from EB2 oversubscribed countries. If there are visas even after that, then they will spill over to the next lower EB category. This is the provision that is proposed to be stricken out.

Ramba
03-22-2006, 05:25 PM
In worst case, if 202-a5 was eliminated, do you thing EB visas will be diverted to FB? Will A3 give any protection to EB catagory? 202-a3 will give more protection for FB class due to 10 to 12 years of backlogs in 4th preference FB catagory? If so, it tottaly violates the quota in EB and FB class and there is no meaning of preference level.

logiclife
03-22-2006, 05:34 PM
Loss of country soft cap quota is intended and not an error. The hard cap ensures that the newly created EB 5 applicants get all the usused visas and to keep EB 5 well-supplied, the numbers are being drained from EB 1, 2 and 3.

All our employers have to know this. The kind of employers who pushed for more greencards for EB1, 2 and 3 during S 1932 have to know this. Please circulate this to your employer, other recruitors/employers who want to have more access to foriegn born employees in high-skills area.

Hard cap has flown below the radar and its our job to spread awareness. Send the PDF file(on homepage) to all the people you know.

The worst case scenario is that with the hard cap, if the good things are elimination in the conference committ.(Very likely) then we will be worse off than we were last year. we will all get greencard on or around the graduation day our our children's high school and we will be driving hydrogen fuel-cell cars by that time.

eb3_nepa
03-22-2006, 05:35 PM
Have the IV Core members or QGA come to any conclusion as to how to go about solving this problem?

Berkeleybee
03-22-2006, 05:36 PM
We have prepared a new document for public release analyzing this problem.

You can find it here (http://www.immigrationvoice.org/index.php?option=com_content&task=view&id=70&Itemid=36) and at least for now directly on our home page.

It appears that the community of affected parties does not realize this yet -- please circulate this memo widely -- send it to your own lawyer too.

eb3_nepa
03-22-2006, 05:41 PM
Maybe we shud send this document to our friends at NumbersUSA (anonymously). That shud shake them up. ;)

logiclife
03-22-2006, 06:09 PM
Numbers USA cares about total number of immigrants per year.

If you move visa numbers from EB1, EB2 and EB3 to EB5 with fancy tactics like hard country quota(What Specter and Frist bills are doing), they dont really care.

They will be happy if the GRAND TOTAL of all greencards per year is brought down from number X to number Y. The grand total is a total of all Greencards: Family Based, Employment based, Diversity, Refugee etc.

--Jay.

willgetgc2005
03-22-2006, 08:36 PM
Numbers USA cares about total number of immigrants per year.

If you move visa numbers from EB1, EB2 and EB3 to EB5 with fancy tactics like hard country quota(What Specter and Frist bills are doing), they dont really care.

They will be happy if the GRAND TOTAL of all greencards per year is brought down from number X to number Y. The grand total is a total of all Greencards: Family Based, Employment based, Diversity, Refugee etc.

--Jay.

IV is going full throttle despite all these depressing Immigration tactics being played out in Washington. IV is the beacon, to me atleast. Thanks guys for being so proactive and professional, not withstanding your regular jobs.


Pls see the link below. Even BIll Gates is asking for increase in H1 and not in Green cards (Last time he asked for GCs too) Every one wants cheap labor. They know people will wait for GC for 10 years. I guess creating a second class wannabe GCs is good for the industry.
We work hard in anticipation of GC

http://www.samachar.com/showurl.htm?rurl=http://www.hindustantimes.com/news/181_1654992,0002.htm?headline=Bill~Gates~for~big~r aise~in~H-1B~visas


For all the hype about retaining skills here, wonder what is going on. It makes one wonder if this country is worth
it anymore. Seriously.

willgetgc2005
03-22-2006, 08:37 PM
Sent to my Attorney.

willgetgc2005
03-22-2006, 08:38 PM
We have prepared a new document for public release analyzing this problem.

You can find it here (http://www.immigrationvoice.org/index.php?option=com_content&task=view&id=70&Itemid=36) and at least for now directly on our home page.

It appears that the community of affected parties does not realize this yet -- please circulate this memo widely -- send it to your own lawyer too.


sent to my attorney. Hope they understand it :--))