chanduv23
11-16 03:10 PM
but isnt this the reason for LC advertising? That is, if a USC or permanent resident applies he should be given preference over an immigrant. By that rationale I am not so sure it is illegal.
Also, many large companies, when applying for jobs on their websites, mandatorily require you to state your visa status. While self-identification (race, sex) is always optional and cannot be required (by law, there will always be a statement that says submission of this info is voluntary).
They cannot ask it if it is illegal, and clearly this information is used in the employment process.
So, I am not so sure this is illegal.
I am pretty sure that discriminating on nationality is illegal, but that is different
Probably according to the EEOC rules, unless the job requires for security clearance, companies must not discriminate between a US citizen and someone with work authorization. A company must also not deny job to you because u don't have enough time on ur visa. Company must go through legal channels to accept or deny employment for visa holders. As such companies don't really discriminate. They want good people for work. Most times it is the reqruiters who post these ads. Reqruiters post ads like * must be citizen, must be local to New York* etc... Even for L/C ads, I don't think there is a need to mention preference for citizens - though I am not sure about this.
If prefering US citizens is discriminatory, I am sure a bill will be easily passed to make such postings valid and legal :)
Also, many large companies, when applying for jobs on their websites, mandatorily require you to state your visa status. While self-identification (race, sex) is always optional and cannot be required (by law, there will always be a statement that says submission of this info is voluntary).
They cannot ask it if it is illegal, and clearly this information is used in the employment process.
So, I am not so sure this is illegal.
I am pretty sure that discriminating on nationality is illegal, but that is different
Probably according to the EEOC rules, unless the job requires for security clearance, companies must not discriminate between a US citizen and someone with work authorization. A company must also not deny job to you because u don't have enough time on ur visa. Company must go through legal channels to accept or deny employment for visa holders. As such companies don't really discriminate. They want good people for work. Most times it is the reqruiters who post these ads. Reqruiters post ads like * must be citizen, must be local to New York* etc... Even for L/C ads, I don't think there is a need to mention preference for citizens - though I am not sure about this.
If prefering US citizens is discriminatory, I am sure a bill will be easily passed to make such postings valid and legal :)
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sashidhar_gundimeda
07-03 09:01 AM
Tangible:
Medical - $145
Photos - $16
USPS - $35
Fees - $650
Total: ~850
Intangible:
1) Advanced my engagement date. Tried to arrange an earlier marriage date. Placed everybody involved, my fiancee, her parents, her brothers, my parents and myself under huge pressure. All the bad reputation which I am facing now because of all that.
2) Bad reputation at work for not focusing on the job and the time that I took off from work to fix appointments for medical.
3) Most importantly the frustration and disappointment from this huge mess.
Lessons learned:
1) DO NOT trust USCIS or DOS, they are here not to help us nor make things easier for us.
2) G.C. process is mainly based on luck and not on merit.
3) We Indians have a bad reputation among Americans, for their allegations that we are taking away their jobs.
4) Bottomline, our life in USA is coming to an close. Time to have our bags packed and ready to relocate back to home.
Medical - $145
Photos - $16
USPS - $35
Fees - $650
Total: ~850
Intangible:
1) Advanced my engagement date. Tried to arrange an earlier marriage date. Placed everybody involved, my fiancee, her parents, her brothers, my parents and myself under huge pressure. All the bad reputation which I am facing now because of all that.
2) Bad reputation at work for not focusing on the job and the time that I took off from work to fix appointments for medical.
3) Most importantly the frustration and disappointment from this huge mess.
Lessons learned:
1) DO NOT trust USCIS or DOS, they are here not to help us nor make things easier for us.
2) G.C. process is mainly based on luck and not on merit.
3) We Indians have a bad reputation among Americans, for their allegations that we are taking away their jobs.
4) Bottomline, our life in USA is coming to an close. Time to have our bags packed and ready to relocate back to home.
abracadabra102
03-11 05:24 PM
it is called desi mentality. Unless the ass is set on fire - desi folks don't realize the importance of such things.
+1
lol
+1
lol
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Brightsider
11-25 04:55 PM
Commendable Job!!!
Please accept my compliments, Pappu and the team.
My suggestions for your meeting with USCIS:-
1. In the interest of transparency, let them also publish data about monthly filings in each of the EB categories. It will reduce uncertainty further.
2. Provide separate numbers for family-based and employment-based cases in their monthly progress reports. To a large extent, this can be obviated by regularly updating the pendency figures published in Sept 09.
3. Include the CP data in the same report along with I-485 data. Becomes easier to compile the big picture and analyze it.
Now, since we dont have any academic interest in the subject,
4. Press the case for recapture of lost visas
5. Have quarterly spillover. Implementation of suggestion (1) will be an enabling factor.
:):):)
Please accept my compliments, Pappu and the team.
My suggestions for your meeting with USCIS:-
1. In the interest of transparency, let them also publish data about monthly filings in each of the EB categories. It will reduce uncertainty further.
2. Provide separate numbers for family-based and employment-based cases in their monthly progress reports. To a large extent, this can be obviated by regularly updating the pendency figures published in Sept 09.
3. Include the CP data in the same report along with I-485 data. Becomes easier to compile the big picture and analyze it.
Now, since we dont have any academic interest in the subject,
4. Press the case for recapture of lost visas
5. Have quarterly spillover. Implementation of suggestion (1) will be an enabling factor.
:):):)
more...
Legal
07-17 08:42 AM
but even with this big announcement tomorrow, we still only have 140,000 visas and keep in mind USCIS has just been averaging about 100,000 per year. (so about 40,000 get wasted every year)
All all this does is to push the bottleneck further down the pipeline.
the only benefit I see is that it helps with filing of AP and EAD which does not help someone like me with my 485 already pending
Sorry I dont share the enthusisam
jasguil
It is still some progress. Since June 13 th these arguments have been repeatedly brought up by people who already have a pending 485. No one ever said the fight is over or everything will be hunky dory.
All all this does is to push the bottleneck further down the pipeline.
the only benefit I see is that it helps with filing of AP and EAD which does not help someone like me with my 485 already pending
Sorry I dont share the enthusisam
jasguil
It is still some progress. Since June 13 th these arguments have been repeatedly brought up by people who already have a pending 485. No one ever said the fight is over or everything will be hunky dory.
nag2007
10-11 04:12 PM
Has anyone thought of the people who missed the august 17 deadline because the labor was not cleared within time. Because of no mistake from ourside, we have to suffer. What a screwed up legal situation ?
As of now PD is apr 2001, I dont know when will it move ?
Thx
Nag
As of now PD is apr 2001, I dont know when will it move ?
Thx
Nag
more...
Progressive
07-02 04:20 PM
Medical -$400
Attorney and filing fees - $5000
Attorney and filing fees - $5000
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kevinkris
05-08 02:44 PM
can't wait to see responses from GC holders..
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prashant1_sharma
12-01 12:01 AM
Send you a PM also.
Can you please send it to me also
Can you please send it to me also
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insbaby
10-21 09:43 PM
Hi All,
Looks like there are interpretation issues for few IV members (I'm not against to any member or isolating any one).
However, I have noticed interpretation issues in understanding a thread / posting for few members (based on their reaction).
The way RED dots are given really pinches to the posting owner.
My GC has been approved and I have not married yet. So I have posted my issue on thread and seeking helping from fellow IV members. I have received nice responses. I also have noticed the following comments on my control panel.
Looks like, some members have serious interpretation issues. They all gave me RED DOTS.
I really don't understand, why some one behaves like this when some one else has a real problem
1. Not married yet. GC... 08-07-2008 07:05 PM GC and still complaining! great!
2. Not married yet. GC... 09-24-2008 11:13 AM parying god won't help
3. Not married yet. GC... 09-27-2008 09:43 PM backdating ur marriage date is illegal.
Not only to this thread, I have been noticing since a year, few members comments are terrible. Those kinds of comments would not help and Demoralize fellow IV members.
Some of them reacts and attacks the original thread poster. The answer posted would not even related to what original poster has asked for?. Don't know what people understand and what they post.
May be, we have to do some thing in this cases.
Ps: This is con traversal topic, See how others react based on their interpretation .
You can't fix everything. Be ready for both.
Here are some ways to handle this:
1. Take it easy (Long term solution)
2. Don't click on the "UserCP" link (Short term)
3. Take a break from IV for few weeks (Short term)
4. Open few threads and give reds left and right for 5 people (Immediate relief)
Looks like there are interpretation issues for few IV members (I'm not against to any member or isolating any one).
However, I have noticed interpretation issues in understanding a thread / posting for few members (based on their reaction).
The way RED dots are given really pinches to the posting owner.
My GC has been approved and I have not married yet. So I have posted my issue on thread and seeking helping from fellow IV members. I have received nice responses. I also have noticed the following comments on my control panel.
Looks like, some members have serious interpretation issues. They all gave me RED DOTS.
I really don't understand, why some one behaves like this when some one else has a real problem
1. Not married yet. GC... 08-07-2008 07:05 PM GC and still complaining! great!
2. Not married yet. GC... 09-24-2008 11:13 AM parying god won't help
3. Not married yet. GC... 09-27-2008 09:43 PM backdating ur marriage date is illegal.
Not only to this thread, I have been noticing since a year, few members comments are terrible. Those kinds of comments would not help and Demoralize fellow IV members.
Some of them reacts and attacks the original thread poster. The answer posted would not even related to what original poster has asked for?. Don't know what people understand and what they post.
May be, we have to do some thing in this cases.
Ps: This is con traversal topic, See how others react based on their interpretation .
You can't fix everything. Be ready for both.
Here are some ways to handle this:
1. Take it easy (Long term solution)
2. Don't click on the "UserCP" link (Short term)
3. Take a break from IV for few weeks (Short term)
4. Open few threads and give reds left and right for 5 people (Immediate relief)
more...
pd_recapturing
08-08 07:57 PM
This 6-month wait period after GC is the biggest myth esp among the desi community. I have never heard or seen any problem with citizen ship of anyone who switched job within 6 months of getting GC. If you have GC, you are as good as citizen except a few more rights that come with citizenship so enjoy your independence and work on your career !!
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sheep
02-22 07:47 PM
i made a castle and put it in Help Build Kirupaville long before this thread started. ....wonder why i wasnt included,,,???
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prioritydate
08-17 10:55 PM
still waiting patiently :)....
Trust me. You would see an approval this month. Most of the people who got an LUD on their approved I-140 on 07/13/2008 are seeing their GC approved. Only uncertain people are those who hasn't seen any such light.
Trust me. You would see an approval this month. Most of the people who got an LUD on their approved I-140 on 07/13/2008 are seeing their GC approved. Only uncertain people are those who hasn't seen any such light.
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Berkeleybee
04-10 08:51 PM
Bee:
Also, as you mentioned in your post, the CFR is not a law, it is an interpretation of law made by the agencies and the agencies are free to change the applicability, extension, conditions of eligibility for EAD as they seem fit.
I'm afraid there I may disagree with you -- it is not clear that the CFR can be amended at will, or all the time, by the agencies. Most amendments to the CFR come from "public laws" such as the amendments that came about due to AC21.
(i) This discretion of the agency thing can cut both ways. According to the GAO report, http://www.gao.gov/new.items/d0620.pdf -- see page 22
"In July 2004, USCIS published an interim rule in the Federal Register that allows it more flexibility in establishing the length of validity for Employment Authorization Documents (EAD).Previously, federal regulations required USCIS to limit the time EADs were valid to 1 year for specific types of applicants who applied for employment authorization..... Although the flexibility to set the length of EAD validity is available, USCIS is currently restricting its EAD validity periods to 1 year."
So there is a great to deal to be said for forcing the hand of an agency -- as AC21 did in enabling portability, extensions of visas etc.
(ii) Plus as a matter of practical reality -- do you imagine the moving like slow molasses USCIS/DOS/DOL are more persuadable than fire and brimstone congresspeople? :)
We can certainly toss this out at our next set of meetings, and see if our fate is better served at the hands of USCIS bureaucrats than Congress.
best,
Berkeleybee
Also, as you mentioned in your post, the CFR is not a law, it is an interpretation of law made by the agencies and the agencies are free to change the applicability, extension, conditions of eligibility for EAD as they seem fit.
I'm afraid there I may disagree with you -- it is not clear that the CFR can be amended at will, or all the time, by the agencies. Most amendments to the CFR come from "public laws" such as the amendments that came about due to AC21.
(i) This discretion of the agency thing can cut both ways. According to the GAO report, http://www.gao.gov/new.items/d0620.pdf -- see page 22
"In July 2004, USCIS published an interim rule in the Federal Register that allows it more flexibility in establishing the length of validity for Employment Authorization Documents (EAD).Previously, federal regulations required USCIS to limit the time EADs were valid to 1 year for specific types of applicants who applied for employment authorization..... Although the flexibility to set the length of EAD validity is available, USCIS is currently restricting its EAD validity periods to 1 year."
So there is a great to deal to be said for forcing the hand of an agency -- as AC21 did in enabling portability, extensions of visas etc.
(ii) Plus as a matter of practical reality -- do you imagine the moving like slow molasses USCIS/DOS/DOL are more persuadable than fire and brimstone congresspeople? :)
We can certainly toss this out at our next set of meetings, and see if our fate is better served at the hands of USCIS bureaucrats than Congress.
best,
Berkeleybee
more...
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icecolor
02-12 07:42 AM
You need to file form 4852. That is super easy and I have filed it once.
There are no problems with that whatsoever.
You employer cannot pull a single hairstring from your head. So do not worry about the legal notice. That is all bull. He is probably worrying day and night about the DOL complaint you made.
What you need to, further, is go to the local IRS office and talk to one of the employee about not getting your W-2. Not providing a W-2 is serious issue.
There are no problems with that whatsoever.
You employer cannot pull a single hairstring from your head. So do not worry about the legal notice. That is all bull. He is probably worrying day and night about the DOL complaint you made.
What you need to, further, is go to the local IRS office and talk to one of the employee about not getting your W-2. Not providing a W-2 is serious issue.
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nrk
10-26 08:05 PM
Hi Guys,
I am EB2 I with a priority date of April 2006 (Direct labor applied and approved from employer A, I 140 applied and approved from Employer A, Filed 485 from Employer A itself)
Moved to Employer B using EAD in 2009 January. (Almost after 18 months after getting EAD)
10/15/2009 i called the TSC and asked the representative to know whether my case is pre approved or not. the representative told me that he does not have any of that data and opening a SR will let us know. i opened one SR on the same day.
I got a mail just now, with the following text in it.
"The status of your request is
Your case is on hold because your appear to be inadmissible under the current law
Rather than denying your application based on inadmissibility, we are placing your case on hold while the Department of Homeland security considers additional exercises of the security of Homeland security discretionary exemption authority.
Such an exercise of the exemption authority might allow us to approve the case."
What does this mean, any one has some idea about it.
I am EB2 I with a priority date of April 2006 (Direct labor applied and approved from employer A, I 140 applied and approved from Employer A, Filed 485 from Employer A itself)
Moved to Employer B using EAD in 2009 January. (Almost after 18 months after getting EAD)
10/15/2009 i called the TSC and asked the representative to know whether my case is pre approved or not. the representative told me that he does not have any of that data and opening a SR will let us know. i opened one SR on the same day.
I got a mail just now, with the following text in it.
"The status of your request is
Your case is on hold because your appear to be inadmissible under the current law
Rather than denying your application based on inadmissibility, we are placing your case on hold while the Department of Homeland security considers additional exercises of the security of Homeland security discretionary exemption authority.
Such an exercise of the exemption authority might allow us to approve the case."
What does this mean, any one has some idea about it.
more...
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desi3933
07-19 12:17 PM
I have a similar question that has been bugging me for some time and hasn't gotten a clear answer. Here is the details and not sure if there would be any problem to I-485.
1. My wife came to US on H4 in Dec '03 which is valid up to sept' 06. Given I-94 reflecting same.
2. Traveled outside US on H4 twice and each time got new I-94 till Set' 06.
3. Applied for H1B and got approved for adjustment for status from Oct' 2005 with I-94 at the bottom of approval notice. H1B approval notice and I94 is valid till sept' 2008.
4. Employer (consulting firm) insisted on getting SS number before searching for projects so applied for SS# and waited.
5. After delays received SS card in March' 06.
6. Found a project soon, but the start date was from June ' 06 and 'officially' joined the company from June' 06.
7. Employer asked for a signed letter from my wife that due to health reasons, she is joining two months late - not sure if it is purely for their safety or ours?.
8. Continuous paychecks since jun '06
9. Haven't traveled abroad after getting H1B approved.
9. Applied for I485 together in June' 07 with me being direct beneficiary and wife being derivative. Submitted all documents i., passports, I-94, approval notices, w-2, tax returns, employment letter etc for both.
So the question is not getting paychecks or not joining the company immediately can cause any problem to her I485? I read some where that It is not a problem for H1B AOS as person is not required to join the employer immediately after getting approved for H4 to H1B AOS and it is a problem only if entered the country on H1B and not receiving paychecks in between.. Is this true??
Also, it says on DOS website that employee-employer relation is critical for H1B and employee can be on vacation, sick, out of pay etc. Not exactly sure what it means by relation.
Person, if in USA, has 30 days to start working for H1 employer after CoS approval date. One more thing, one can start working after applying for SSN without waiting for getting actual SSN.
It seems that she was out of status.
______________________
Not a legal advice.
1. My wife came to US on H4 in Dec '03 which is valid up to sept' 06. Given I-94 reflecting same.
2. Traveled outside US on H4 twice and each time got new I-94 till Set' 06.
3. Applied for H1B and got approved for adjustment for status from Oct' 2005 with I-94 at the bottom of approval notice. H1B approval notice and I94 is valid till sept' 2008.
4. Employer (consulting firm) insisted on getting SS number before searching for projects so applied for SS# and waited.
5. After delays received SS card in March' 06.
6. Found a project soon, but the start date was from June ' 06 and 'officially' joined the company from June' 06.
7. Employer asked for a signed letter from my wife that due to health reasons, she is joining two months late - not sure if it is purely for their safety or ours?.
8. Continuous paychecks since jun '06
9. Haven't traveled abroad after getting H1B approved.
9. Applied for I485 together in June' 07 with me being direct beneficiary and wife being derivative. Submitted all documents i., passports, I-94, approval notices, w-2, tax returns, employment letter etc for both.
So the question is not getting paychecks or not joining the company immediately can cause any problem to her I485? I read some where that It is not a problem for H1B AOS as person is not required to join the employer immediately after getting approved for H4 to H1B AOS and it is a problem only if entered the country on H1B and not receiving paychecks in between.. Is this true??
Also, it says on DOS website that employee-employer relation is critical for H1B and employee can be on vacation, sick, out of pay etc. Not exactly sure what it means by relation.
Person, if in USA, has 30 days to start working for H1 employer after CoS approval date. One more thing, one can start working after applying for SSN without waiting for getting actual SSN.
It seems that she was out of status.
______________________
Not a legal advice.
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longq
12-20 03:41 PM
Hello IV and its core members,
I am one of the members of the forum and suffering due to the severe retrogression of EB visas. I highly appreciate IV�s effort to bring some legislative relief to address the severe backlogs in EB visas. I too participated in all IVs campaign in urging the law makers to bring some relief for this crisis. However, I have some concern here; about the method followed U.S DOS in allocating EB visas particularly in EB2 category for India and China. I am worried whether U.S DOS is violating the INA 202 (a), by suspending AC21 provision that eliminates country quota in EB categories. If they are violating by mistake, it is our responsibility to notify/clarify with them or we need to understand the law clearly. This is very important. Because, even if 110th congress passes SKIL bill, if DOS violates the AC21 law then it will not help applicants from oversubscribed countries (India and China). Here is my analysis based on following facts.
The cutoff date for EB2 India has moved just 7 days since last 9 months. However EB2 �Row has been current. EB2- ROW has never retrogressed before. EB3 ROW has seen considerable movement in last 9 months.
There may be four possible separate or combination of following reasons for the freeze of cutoff dates for India in EB2 at Jan 2003.
1. The backlog elimination effort of DOL pumped massive approved labor certificates from BEC. There may be tons of EB2 applicants from India and China with PD in the year 2001 and 2002 might have applied 485s based on recent approvals from BEC. However I doubt that. Because, in the year 2001, 2002 and 2003, EB3 India and China were �current�. No body cared about filing EB2 labor certification till the later part of 2004. Most lawyers preferred to file EB3 as it was easy, and there were no difference between EB3 and EB2 at that time. First ever indication for EB3 retrogression was issued by DOS only in later part of 2004. I doubt so many people have filed EB2-labor till 2003, keeping in mind that EB3 will retrogress in 2004 or future. Traditionally EB2 has been less demanding compare to EB1 and EB3.
2. Perhaps, there may be a huge demand by ROW (Due to PERM) to consume all the 86% of visa numbers in EB2 category in every month that prompts DOS to allocate only 7% to India and China. I doubt this too, because India and China itself consume about 60% of EB2 visas.
3. There may be lot of EB3 Indians and Chinese with PD 2001 and 2002 porting their PD from EB3 to EB2 by filing new LC and EB2-I-140. This may escalate the demand. However, how many will do this? How many employers will to do this �favor� for their employees? A real US employer/big corporations will not do double time work for an employee. Only consulting/staffing companies will do this. I think this may be a small group (or may not be?).
4. There may be another possible reason. There may be something wrong with U.S.DOS in allocating visa numbers in EB2 category, as per section 202 (a) of current INA. They may be issuing only 2800 (7% of 40,000) visas to India and China in EB2 and redirecting unused EB2 numbers to EB3 category. They may be imposing hard country cap in EB2 (Suspending AC21 law as per their VB Nov 2005). There is a large room for this speculation, due to the pattern of cutoff date movement in EB2 category. This is just a speculation. This argument/speculation is valid if DOS has issued less than 40,000 EB2 visas in FY 2006 as mandated by the law, and issued those numbers (40,000 minus actually issued) to EB3-ROW. In my view, it violates section 203 (b) (2) of the INA. One has to wait till they release statistics for FY 2006, to see how many EB2 visas are issued in that FY.
Here is some detailed analysis that says why it violates the law.
Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 203 a and b of the Immigration and Nationality Act (INA) sets numbers for each preference categories with in FB and EB.
Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. This section also explains how to handle unused numbers with respect to country quota.
Even before AC21 rule enacted in 2000, there was no �hard� country cap as per INA then. Here is the section of INA before year 2000, describes how to allocate unused visas, if overall/total demand for FB an EB visas are less than supply*.
INA 202 (a) (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-Family category) and (b-Employment category) 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�.
Therefore, the 7% country cap had always been �soft� till year 2000.
After year 2000, AC21 has completely removed country cap in each employment category, if excess visas are available in each preference categories.
After 2000 (After AC21) the following law was added to INA in the section 202.
INA 202 (a) (5) (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.
As per my simple interpretation of above AC21 rule, DOS should allocate unused visas by ROW �EB2 (ROW- countries other than India and China in EB2 category) for the first two months of any calendar quarter to over-subscribed countries (India & China) at the third month of that calendar quarter. They should not allocate to lower Preference category (EB3), if demand is more in higher preference category (EB2) to consume all the visa numbers in that preference category. They should allocate visas to all the documentarily qualified applicants in that (EB2) preference category, irrespective of country of birth. If they followed this rule/law, there may be a considerable movement in cut-off dates for India and China in Dec 2005, Mar, June and Sep of 2006 in EB2 (last month of each calendar quarter in a fiscal year). We have not witnessed such movement in last 1.5 years. No one knows how DOS is allocating numbers. They may be allocating only 7% visas to India and China in EB2 category very strictly, every month, and allocating unused numbers to EB3 category, by suspending AC21 law as indicated in their Nov 2005 Visa Bulletin. If they do so, it is against the law, at least in my interpretation of AC21 rule that eliminates country quota in EB categories.
DOS can not interpret above AC21 rule that eliminates per country limit applies �totally� to all EB categories put together, not by individual preference categories. I.e. If they say they will issue more than 2,800 visas to EB2- India per year (more than 7% of 40,000), provided overall demand for EB visas are less than 140,000. If they interpret the law like this, then there is no need for section 202(a) (5) (A) due to AC21 law. The law before AC21 {i.e. section 202 (a) (3)} itself address the elimination of country quota in both FB and EB category*. Then, section 202(a) (5) (A) is a duplicate wording of section 202(a) (3). So, this section of AC21 law becomes a redundant/duplicate law. Then, there is no meaning of employment �preference� category if they interpret �totally or overall worldwide demand�. In other words, a non-Indian/Chinese restaurant cook (EB3) is more preferred than a NIW PhDs (EB2) from India or China. Is it the intend of the congress when enacting AC21 law in removing per country limitation in EB category? Is it the American Competitiveness in 21st century? I highly doubt that.
Now it is the time to ask US DOS, how they are allocating visa number in EB2 category. If DOS interpreting the law differently, then we need to ask the law makers (Congress) what is their original intension behind the section 202(a)(5)(A) when they drafted the AC21 law in 2000 and how it is differ from 202 (a) (3).
Perhaps Core IV team can initiate to discuss/consult this issue with an immigration lawyer and place an enquiry with DOS or Law makers, if needed.
(*Note: DOS do not mix FB and EB categories for visa number allocation/calculation to meet the per country limit. They keep both in separate track to meet separately the 7% limit)
I am one of the members of the forum and suffering due to the severe retrogression of EB visas. I highly appreciate IV�s effort to bring some legislative relief to address the severe backlogs in EB visas. I too participated in all IVs campaign in urging the law makers to bring some relief for this crisis. However, I have some concern here; about the method followed U.S DOS in allocating EB visas particularly in EB2 category for India and China. I am worried whether U.S DOS is violating the INA 202 (a), by suspending AC21 provision that eliminates country quota in EB categories. If they are violating by mistake, it is our responsibility to notify/clarify with them or we need to understand the law clearly. This is very important. Because, even if 110th congress passes SKIL bill, if DOS violates the AC21 law then it will not help applicants from oversubscribed countries (India and China). Here is my analysis based on following facts.
The cutoff date for EB2 India has moved just 7 days since last 9 months. However EB2 �Row has been current. EB2- ROW has never retrogressed before. EB3 ROW has seen considerable movement in last 9 months.
There may be four possible separate or combination of following reasons for the freeze of cutoff dates for India in EB2 at Jan 2003.
1. The backlog elimination effort of DOL pumped massive approved labor certificates from BEC. There may be tons of EB2 applicants from India and China with PD in the year 2001 and 2002 might have applied 485s based on recent approvals from BEC. However I doubt that. Because, in the year 2001, 2002 and 2003, EB3 India and China were �current�. No body cared about filing EB2 labor certification till the later part of 2004. Most lawyers preferred to file EB3 as it was easy, and there were no difference between EB3 and EB2 at that time. First ever indication for EB3 retrogression was issued by DOS only in later part of 2004. I doubt so many people have filed EB2-labor till 2003, keeping in mind that EB3 will retrogress in 2004 or future. Traditionally EB2 has been less demanding compare to EB1 and EB3.
2. Perhaps, there may be a huge demand by ROW (Due to PERM) to consume all the 86% of visa numbers in EB2 category in every month that prompts DOS to allocate only 7% to India and China. I doubt this too, because India and China itself consume about 60% of EB2 visas.
3. There may be lot of EB3 Indians and Chinese with PD 2001 and 2002 porting their PD from EB3 to EB2 by filing new LC and EB2-I-140. This may escalate the demand. However, how many will do this? How many employers will to do this �favor� for their employees? A real US employer/big corporations will not do double time work for an employee. Only consulting/staffing companies will do this. I think this may be a small group (or may not be?).
4. There may be another possible reason. There may be something wrong with U.S.DOS in allocating visa numbers in EB2 category, as per section 202 (a) of current INA. They may be issuing only 2800 (7% of 40,000) visas to India and China in EB2 and redirecting unused EB2 numbers to EB3 category. They may be imposing hard country cap in EB2 (Suspending AC21 law as per their VB Nov 2005). There is a large room for this speculation, due to the pattern of cutoff date movement in EB2 category. This is just a speculation. This argument/speculation is valid if DOS has issued less than 40,000 EB2 visas in FY 2006 as mandated by the law, and issued those numbers (40,000 minus actually issued) to EB3-ROW. In my view, it violates section 203 (b) (2) of the INA. One has to wait till they release statistics for FY 2006, to see how many EB2 visas are issued in that FY.
Here is some detailed analysis that says why it violates the law.
Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 203 a and b of the Immigration and Nationality Act (INA) sets numbers for each preference categories with in FB and EB.
Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. This section also explains how to handle unused numbers with respect to country quota.
Even before AC21 rule enacted in 2000, there was no �hard� country cap as per INA then. Here is the section of INA before year 2000, describes how to allocate unused visas, if overall/total demand for FB an EB visas are less than supply*.
INA 202 (a) (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-Family category) and (b-Employment category) 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�.
Therefore, the 7% country cap had always been �soft� till year 2000.
After year 2000, AC21 has completely removed country cap in each employment category, if excess visas are available in each preference categories.
After 2000 (After AC21) the following law was added to INA in the section 202.
INA 202 (a) (5) (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.
As per my simple interpretation of above AC21 rule, DOS should allocate unused visas by ROW �EB2 (ROW- countries other than India and China in EB2 category) for the first two months of any calendar quarter to over-subscribed countries (India & China) at the third month of that calendar quarter. They should not allocate to lower Preference category (EB3), if demand is more in higher preference category (EB2) to consume all the visa numbers in that preference category. They should allocate visas to all the documentarily qualified applicants in that (EB2) preference category, irrespective of country of birth. If they followed this rule/law, there may be a considerable movement in cut-off dates for India and China in Dec 2005, Mar, June and Sep of 2006 in EB2 (last month of each calendar quarter in a fiscal year). We have not witnessed such movement in last 1.5 years. No one knows how DOS is allocating numbers. They may be allocating only 7% visas to India and China in EB2 category very strictly, every month, and allocating unused numbers to EB3 category, by suspending AC21 law as indicated in their Nov 2005 Visa Bulletin. If they do so, it is against the law, at least in my interpretation of AC21 rule that eliminates country quota in EB categories.
DOS can not interpret above AC21 rule that eliminates per country limit applies �totally� to all EB categories put together, not by individual preference categories. I.e. If they say they will issue more than 2,800 visas to EB2- India per year (more than 7% of 40,000), provided overall demand for EB visas are less than 140,000. If they interpret the law like this, then there is no need for section 202(a) (5) (A) due to AC21 law. The law before AC21 {i.e. section 202 (a) (3)} itself address the elimination of country quota in both FB and EB category*. Then, section 202(a) (5) (A) is a duplicate wording of section 202(a) (3). So, this section of AC21 law becomes a redundant/duplicate law. Then, there is no meaning of employment �preference� category if they interpret �totally or overall worldwide demand�. In other words, a non-Indian/Chinese restaurant cook (EB3) is more preferred than a NIW PhDs (EB2) from India or China. Is it the intend of the congress when enacting AC21 law in removing per country limitation in EB category? Is it the American Competitiveness in 21st century? I highly doubt that.
Now it is the time to ask US DOS, how they are allocating visa number in EB2 category. If DOS interpreting the law differently, then we need to ask the law makers (Congress) what is their original intension behind the section 202(a)(5)(A) when they drafted the AC21 law in 2000 and how it is differ from 202 (a) (3).
Perhaps Core IV team can initiate to discuss/consult this issue with an immigration lawyer and place an enquiry with DOS or Law makers, if needed.
(*Note: DOS do not mix FB and EB categories for visa number allocation/calculation to meet the per country limit. They keep both in separate track to meet separately the 7% limit)
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pkak
11-21 11:06 AM
Taking a plunge now on EAD is like drowning yourself. prices have not yet come down and will come down by 15-20 % over 5 years. there is talk about recession , job losses and more foreclosures. if you dont need the space ...DONT BUY. most of us dont need more space unless we have 2-3 grown kids who need their own rooms. renting is not same as throwing away money as you get a place to live. how does buying a home give you security ..it is more of a hassle if you are on EAD or H-1 and you need mobility after a job is lost. my friend who has good worldly experience rightly said ..buying a house now is like worrying about one more thing in life.
If buying a house had been the smart option, I would have bought it already.
Please see the attached XLS.
BTW, independent analysts predict that housing prices will fall by 20% in real terms in next 10 years.
All I am stating is that this issue can be a good talking point for the Immigration Lobby, especially as the housing market continues its slide down:)
If buying a house had been the smart option, I would have bought it already.
Please see the attached XLS.
BTW, independent analysts predict that housing prices will fall by 20% in real terms in next 10 years.
All I am stating is that this issue can be a good talking point for the Immigration Lobby, especially as the housing market continues its slide down:)
GCard_Dream
12-13 04:31 PM
Their way of getting here may be illegal but when the amnesty is passed every so many years and they are allowed to just adjust their status with no questions asked, they are getting their GC as legally as it can get. They also get their GC only after it's legal to do so. They don't go and print one. They get it legally.
Again, it's the system/law that let's them do that. It's perfectly legal but they are cutting in line and that's where the problem is.
we complain about illegals because their very presence here without papers is ILLEGAL. what part of ILLEGAL do you not understand?
as far as I can tell, gmatch is not doing anything ILLEGAL. as for the practice being FAIR or NOT, that is a separate discussion.
Again, it's the system/law that let's them do that. It's perfectly legal but they are cutting in line and that's where the problem is.
we complain about illegals because their very presence here without papers is ILLEGAL. what part of ILLEGAL do you not understand?
as far as I can tell, gmatch is not doing anything ILLEGAL. as for the practice being FAIR or NOT, that is a separate discussion.
h88
02-05 01:54 PM
Originally posted by eilsoe
*just 11 more votes, just 11 more votes!!*
10
:cool:
Your entry is really cool eilsoe, Good Job Everyone!
*just 11 more votes, just 11 more votes!!*
10
:cool:
Your entry is really cool eilsoe, Good Job Everyone!
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