EB2 Story
India, China and the
"Otherwise Unused" Employment Visas Numbers
Is the Visa Office
Discriminating Against China?
(short answer is "no")
(This
posting was prepared April 4, 2011, before publication of the May
Visa Bulletin)
The State
Department is about to start allocating more than 12,000 extra
visa numbers to EB2 applicants. Most will go to applicants
from India. The EB2 India date in the May Visa Bulletin will
advance for the first time since September, 2010. EB2 India
and China may continue to advance for the rest of the fiscal year
- unlikely to pass December, 2006.
The back story
There are about 140,000
employment based visa numbers available for fiscal year 2011.
Each independent country of the world is limited to no more
than 7% of that total.
There are five employment related preference
classifications - with each allocated a certain percentage of the
total. The second
preference ("EB2") is allocated 28.6% of the total.
Visas are issued in
Priority Date order
Visas numbers are made available in priority date
order within preference classification without regard to country
of changeability of the applicant.
There is an exception for those countries which are
expected to reach their 7% limitation within a fiscal year.
Applicants from those countries are allocated visa numbers
within preference categories.
So why is
EB2 for India and China backlogged, while the rest of the world is
Current?
India and China are both expected to reach their 7%
limitation in fiscal 2011 based on the "reasonable estimates" of
visa usage for the year the Visa Office is permitted to make by
law. (INA 203(g)).
In fact, India had already reached its 2011 EB2 allocation
by April, 2011, and China is well on track to utilize its entire
allocation in July.
This means that India and China are limited to no more than
28.6 percent of their entire country limitation in EB2.
Thus - even though the rest of the world is "current" the
China and India EB2 cutoff dates are currently set to 2006 manage
the approximately 2800 visas typically available under the EB2
annual limit for each country subject to the 7% limitation.
When it rains visa
numbers ...
The law provides that if the total 140,000 employment based
visa numbers are not used, then the extra visa numbers are to be
utilized without regard to
the 7 percent per country limitation.
The law also provides that unused visa numbers from EB4 and EB5
will add to the EB1 total - and unused EB1 visa numbers become
available for EB2. Of
course, visa numbers aren't "unused" until the fiscal year ends on
September 30th - but the law provides that the Visa
Office can allocate visa numbers during the year based on
reasonable expectations of usage.
Because of a drop in overall employment demand, particularly in
EB1, the Visa Office is currently estimating at least 12,000 extra
visa numbers will be available for EB2 this year.
And those 12,000 numbers can now be considered for
potential allocation without
regard to the EB2 per
country limitation which otherwise
affects India and China.
Where
do the additional 12,000 EB2 numbers go?
By law,
the extra 12,000 EB2 numbers are made available to the entire
world in priority date order.
INA
203(e). And they are
allocated without regard to
country of chargeability.
The "Current" EB2 availability for countries other
than India or China indicates that the demand from those countries
is met from the base 28.6% allocation - without need for extra
numbers.
This leaves all 12,000
extra visa numbers to be utilized by India and China.
By law, the 12,000 "otherwise unused" numbers which
will be available for EB2 in 2011 are allocated in priority date
order.
The law provides that they are allocated without regard to the per
country limits once the State Department determines that country
has reached its EB2 limit.
There are at least 17,400 applicants who have
filed, or who are ready to file EB2 adjustment of status
applications and whose priority dates are in calendar year 2006.
For the most part, these are applicants who filed
adjustment of status applications in July or August 2007 when the
visa bulletin reported EB2 as "current" for every country and
whose adjustment of status applications could
not be completed because of retrogression in the EB2
category for India and China.
In addition, there are an unknown number of applicants with
2006 priority dates who have "upgraded" from EB3 to EB2 by filing
new PERM applications and preference petitions.
And there are an unknown number of applicants with approved
EB2 petitions who do not have pending adjustment of status
applications.
There are tens of thousands of additional
applicants who have priority dates subsequent to 2006.
The
12,000 "otherwise unused" will be fully utilized by those with
2006 priority dates. Of
the 17,400 presently "known" applicants, 13,200 are from India,
and 4,200 are from China.
We would therefore expect that about 75% of the applicants
who would benefit would be from India.
However, there are substantial numbers of Indian applicants
whose priority dates are presently not current, but earlier than
any China EB2 applicant whose priority date is available.
As of March, 2011, the EB2 priority date from China is
July 8, 2006 and India is two months behind at May 8, 2006.
The EB2 priority date for India will advance until either
the 12,000 visa numbers are used, or until it becomes equal to the
China EB2 date. The
China and India EB2 dates will then advance together.
In April (and for the next few months), India EB2
will be earlier than China EB2.
We would therefore expect
India to benefit from more than 75% of the extra 12,000 EB2
numbers
because we believe more
than 75% of those with the oldest EB2 priority dates are from
India.
So is the
Visa Office discriminating against China?
If more than 75% of the "otherwise unused" visa
numbers were allocated to India instead of split between India and
China, would it mean the Visa Office discriminating against China?
Is it favoring
India? The
answer is that the Visa
office is not discriminating against or favoring any country in
allocating the "otherwise unused" numbers.
It is following the
law.
The law requires the "otherwise unused" visa
numbers to be allocated in priority date order.
There are more applicants from India than China with older
priority dates. The
applicants with the older priority dates will get the visa numbers
first. That is the
law. Those are the
applicants who have waited the longest.
Most of those are from India.
There are claims that
this somehow violates the
anti-discrimination provisions of the INA which provides that
no person shall be discriminated against in their preference or
priority classifications because of their country of birth (except
for the per country limits which don't apply as to the "otherwise
unused" numbers).
It clearly does
not. The allocation of
extra numbers is being done by the visa office without regard to a
person's nationality or country of birth.
The allocation is being made by "place in line" - priority
date - as required by law.
The people who have waited the longest go first.
That is the law.
To "split the baby" and give half the extra numbers to
persons from one country and half to persons from another would
violate the law.
Sharing the otherwise unused visa numbers
equally between India and China would mean that someone from India
with an older priority date would wait longer than an applicant
from China - and that would violate the anti-discrimination
provisions of the INA.
Applicants from both those countries are discriminated
against with regard to the 7% limitation, which takes into account
country of origin.
That is the law.
But the law does not provide for extending that
discrimination to the otherwise unused visa numbers which fall
through to EB2.
Allocating the otherwise unused visa
numbers by priority date and not by country is a requirement of
the law - and it is not discriminatory.
