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  #46 (permalink)  
Old 07-22-2014, 02:16 PM
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Originally Posted by DallasBlue View Post
....
Prior to IMMACT 90,[4] which took effect on October 1, 1991, the start of FY 1992, family members were counted against the cap but there was no explicit provision as in current INA 203(d) granting them the same visa and “green card” status as the principal alien family member. What was the purpose then of inserting INA 203(d)? 101(b)(3) of the House version of IMMACT 90 amended INA 201(b) to provide that an alien “who is provided immigrant status under INA 203(d) as the spouse or child of an immigrant under INA 203(b)” would be among the other classes not subject to numerical limitation.[5] Take a look at the Conference Report that accompanied S. 358, IMMACT 90. In the Joint Explanatory Statement of the Committee of Conference at page 121 under the title “Employment Based Immigration” we read the following:

The House amendment allocated 65,000 employment-based visas during the Fiscal Years 1992-96 and 75,000 thereafter not including numerically exempt derivative spouses and children… (emphasis added)[6]
Curiously, there is no explicit mention or discussion of what became of INA 203(d) in the Conference Report. We next look at House Report No. 101-723 that accompanied House passage of HR 4300 on October 3, 1990. S. 358 passed in lieu of HR 4300 after its language was amended to contain much of the text of the House bill. Under the proposed HR 4300, the 54, 000 visas that were then allocated under the employment-based preference would have been capped at 75,000 principals. Those family members accompanying or following to join were not included in this cap.[7] Candor compels us to admit that the House exemption for derivatives was removed in Conference. Ultimately, Congress enacted INA 201(d) which set a numerical limit of 140,000 for EB immigrants but counting family under that expanded cap. If the House had its way, IMMACT 90 would have had a lower numerical limit of 75,000 EB numbers, but, since family members were not counted, the actual number of EB immigrants would have been higher than 140,000.[8] However, it must be remembered that the House’s intent to exclude family members only applied to the EB not Family quota.

Despite the legislative history cutting against us, it still remains a mystery as to why INA 203(d) was enacted. There was no need to do so since family members were counted in the pre-IMMACT 90 quotas.

.....
This paragraph and narrative doesn't appear to be correct. There is sufficient evidence to suggest the intent of the Senate when IMMACT was under consideration, the bill that increased green card numbers back in 1989.

During the Senate IMMACT debates (in 1989) Senator Specter expressed the understanding that spouses will continue to be counted in his remarks in support of an amendment increasing the employment-based immigrant visa cap by 30,000 are below:

“Mr. President, the experience has demonstrated that there is a significant demand for more business visas. More than half of the current 54,000 business visas are used for family dependents. I do not quarrel with that allocation. But the result is that less than 25,000 visas actually go to the workers.”

Source: 135 Cong. Rec. S7858-02 (July 10, 1989).

Senator Specter then introduced into the record a letter from the Chamber of Commerce supporting the amendment to increase employment-based immigrant visa cap. Interestingly, the letter highlights the fact that dependents will continue to count against the employment-based cap as evidence of the diminished impact of the increase on the U.S. labor market:

“The Specter/DeConcini amendment will propose only a very modest increase (30,000 visas) in the employer-sponsored immigration categories. It may be expected that approximately half the increase will be used by family members of principal employee-immigrants. Thus, the amendment will permit only an additional 15,000-20,000 employer-sponsored immigrants. This small number, together with the fact that these immigrants cannot be sponsored unless the Department of Labor has certified that their skills are not available in the U.S., guarantees that there will be no significant adverse impact on the U.S. labor market. In fact, the labor market impact will be positive because these needed skills enhance productivity and create employment.”

Source: 135 Cong. Rec. S7858-02 (July 10, 1989).

This if from Congressional record which is set in stone and cannot be changed.

So it is not true that Congressional intent was not to count dependents in EB, or, if there is any ambiguity around counting dependents. Moreover, the law, section 1255(b) seals the fate of this suggestion without a doubt.

We would have been the first one jumping over this if this were possible. But the fact is, this admin fix is not possible per the existing law.

Now, hopefully, this will settle it. And without telling us again how much game changer this could be, or, this is "easier" or "low hanging fruit", can we please start talking about other ideas that some of you may have.

Last edited by Administrator2; 07-22-2014 at 08:35 PM.
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  #47 (permalink)  
Old 07-22-2014, 02:24 PM
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for the info.


Quote:
Originally Posted by Administrator2 View Post
There is ABSOLUTELY NO WAY for admin fix to allocate visa numbers to EB from Family based or Diversity. You probably have no idea for the amount of support for family based immigration, which is for family members of US citizens. You might be surprised but a lot of lawmakers (because of their constituents) support FB over EB. This idea will not just defy the law, but it will also defy the politics of the issue.

So to put it lightly, it is not just difficult, but IMPOSSIBLE to take GC number out of family quota for EB dependents. Hopefully, that will settle this idea and we don't have to go back-and-forth about this, like we had to go back-and-forth over the idea of exempting dependents from EB category.
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  #48 (permalink)  
Old 07-22-2014, 02:47 PM
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For Diversity lottery visa , the dependents/derivatives are not counted for the 50k quota they have, while EB dependents are counted against EB quota.
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Originally Posted by Administrator2 View Post
Are you suggesting that law is not followed when allocating Diversity visa, or, are you saying law is not followed when allocating EB visas?

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Originally Posted by Administrator2 View Post
The narrative is not exempting dependents from numerical count. The narrative is rather suggesting to count 1 EB visa for one family (which has the same end-affect of exempting dependents). However, any discussion of how the visa numbers ought to be counted must take into consideration sub-section 1255(b) which is the very relevant section to this debate. This narrative does not mention or acknowledge existence of 1255(b), which is why we disagree with the validity of this suggestion.
interpretation and implementation looks different in the lottery and EB visa issuance was what 'was trying to highlight. In Lottery visas the dependents are not counted against their quota of 50K, the whole family is counted for 1 visa.
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  #49 (permalink)  
Old 07-22-2014, 03:26 PM
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Originally Posted by DallasBlue View Post
interpretation and implementation looks different in the lottery and EB visa issuance was what 'was trying to highlight. In Lottery visas the dependents are not counted against their quota of 50K, the whole family is counted for 1 visa.
Ok, Thanks for clarifying. The implementation in both EB and Diversity category is as per the existing law.
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  #50 (permalink)  
Old 07-22-2014, 10:12 PM
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Default Is AOS without the date being current possible?

According to INA 245(a) [8 USC 1255(a)]

(a) Status as person admitted for permanent residence on application and eligibility for immigrant visa
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if
(1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is filed.
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  #51 (permalink)  
Old 07-22-2014, 11:24 PM
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Originally Posted by yokel View Post
According to INA 245(a) [8 USC 1255(a)]

(a) Status as person admitted for permanent residence on application and eligibility for immigrant visa
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if
(1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is filed.

You seem to know how it works, what do you think?
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  #52 (permalink)  
Old 07-23-2014, 07:48 AM
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I am not an expert, but the law seems to pretty clear to not allow that. This interpretation came up in a discussion on another forum and if I understand correct, IV seems to be proposing this as a fix, I wanted to make u folks aware in case you didn't know. Anyway, my suggestion is for parole in place on approval of I-140, similar to DACA.
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  #53 (permalink)  
Old 07-23-2014, 08:28 AM
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My mistake, I meant parole in place similar to the relief given to military families.
Quote:
Originally Posted by yokel View Post
I am not an expert, but the law seems to pretty clear to not allow that. This interpretation came up in a discussion on another forum and if I understand correct, IV seems to be proposing this as a fix, I wanted to make u folks aware in case you didn't know. Anyway, my suggestion is for parole in place on approval of I-140, similar to DACA.
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  #54 (permalink)  
Old 07-23-2014, 09:28 AM
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Originally Posted by yokel View Post
I am not an expert, but the law seems to pretty clear to not allow that. This interpretation came up in a discussion on another forum and if I understand correct, IV seems to be proposing this as a fix, I wanted to make u folks aware in case you didn't know. Anyway, my suggestion is for parole in place on approval of I-140, similar to DACA.
Here is what I object in your post.
What do you mean by 'you folks'? This means you do not consider yourself part of IV. No IV member who participates in IV will ever say that. And this is why you say 'wanted to make u folks aware in case you didn't know'. You are saying we folks in IV do not know anything. I have gone to advocacy days, volunteered and contributed. I have been an active ember. So I know we senior members know the laws. And IV core are better than many so called experts. You spend all your time on other forums and think IV is just another forum. If your folks on other forum are so intelligent why don't you ask them to get this admin fix for you?
I also object to IV leadership taking suggestions from folks who cannot even comprehend posts by IV and simply copy paste some legal gobbledygook and throw it at IV. Please take suggestions from people who have done something here instead of any Tom Dick who strolls here, blames IV for all their EB3 India troubles and then goes back to other forums to have fun with others wasting time on discussing like fools.
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  #55 (permalink)  
Old 07-23-2014, 09:43 AM
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Thanks for adding to the discussion. Since you seem to indicate that IV knows and has considered everything, I will stop posting. Thanks for the encouragement.

Quote:
Originally Posted by eastindia View Post
Here is what I object in your post.
What do you mean by 'you folks'? This means you do not consider yourself part of IV. No IV member who participates in IV will ever say that. And this is why you say 'wanted to make u folks aware in case you didn't know'. You are saying we folks in IV do not know anything. I have gone to advocacy days, volunteered and contributed. I have been an active ember. So I know we senior members know the laws. And IV core are better than many so called experts. You spend all your time on other forums and think IV is just another forum. If your folks on other forum are so intelligent why don't you ask them to get this admin fix for you?
I also object to IV leadership taking suggestions from folks who cannot even comprehend posts by IV and simply copy paste some legal gobbledygook and throw it at IV. Please take suggestions from people who have done something here instead of any Tom Dick who strolls here, blames IV for all their EB3 India troubles and then goes back to other forums to have fun with others wasting time on discussing like fools.
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  #56 (permalink)  
Old 07-23-2014, 10:29 AM
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Quote:
Originally Posted by yokel View Post
I am not an expert, but the law seems to pretty clear to not allow that. This interpretation came up in a discussion on another forum and if I understand correct, IV seems to be proposing this as a fix, I wanted to make u folks aware in case you didn't know. Anyway, my suggestion is for parole in place on approval of I-140, similar to DACA.
You present valid argument. However, our suggestion to 'allow early submitting Adjustment of status application when visa number is not available' is not violating any law.

Please visit the following URL and click on PDF image to view the document:
Regulations.gov

Then scroll to page 7 of the PDF document to read at our suggestion Recommendation #4. As you would see, our suggestion is more compliant with the existing law as compared to the present day implementation.
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  #57 (permalink)  
Old 07-23-2014, 12:23 PM
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Default Statutory interpretation vs literal interpretation.

"established by the state" , Statutory interpretation vs literal interpretation. literal interpretation drawn out is sate govt. where as statutory or context meant it as authority/govt.

everywhere on every issue, there are lawsuits and discussions on this Statutory interpretation vs literal interpretation of the law.

So for lottery visa they count family towards 1 visa , while in EB all the dependents are counted.

why doesn't congress write what the intention and execution of the law is, when they pass a bill and stop all these law suits and execute as they want by playing with the words :-)
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  #58 (permalink)  
Old 07-23-2014, 12:25 PM
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Thumbs up

Quote:
Originally Posted by Administrator2 View Post
You present valid argument. However, our suggestion to 'allow early submitting Adjustment of status application when visa number is not available' is not violating any law.

Please visit the following URL and click on PDF image to view the document:
Regulations.gov

Then scroll to page 7 of the PDF document to read at our suggestion Recommendation #4. As you would see, our suggestion is more compliant with the existing law as compared to the present day implementation.
hope this one is good non controversial provision, Hope this becomes reality and all 140 approved gets the EAD.
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  #59 (permalink)  
Old 07-23-2014, 12:34 PM
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Aman, how controversial is , counting of time towards citizenship from the day the AOS is filed instead of GC approval day ?

this discussion came up last year here i think
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  #60 (permalink)  
Old 07-24-2014, 03:26 PM
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I cannot wait but thank the hard working folks at the Immigration Voice in advance to show us some hope when everything else has died. You guys have done an awesome job, and your perseverance is showing results. Never in my nightmares I ever thought the USCIS is going to offer any respite, let alone EAD to the H4s. Now I am even dreaming of getting an EAD for myself the I-40 NIW principal. Thanks again guys.

I was wondering, what are the next steps? When are they going to decide on the rule or the changes that have been suggested? Any idea? Weeks? Months? Years? Can we as IV supporters do anything else right now?
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