w*l
发帖数: 933 | 1 http://blog.ilw.com/gregsiskind/2015/10/09/one-theory-explainin
One Theory Explaining Visagate
By Greg Siskind On October 9, 2015 · Add Comment
Since the beginning of the Visagate controversy, something has bothered me
about the explanation USCIS has been offering. Our own number crunching Visa
Bulletin wonk has come up with a number just over 29,000 as the number of
EB-2 India and EB-2 China numbers that will be available in Fiscal Year 2016
and likely demand just over 30,000 if a July 1, 2011 acceptance date is
used. So Charlie Oppenheim’s original Visa Bulletin would have been right
on target.
USCIS forced a revision that that date to July 2009. That’s a date that has
been hit three times in the past so the number of people who would file now
is going to be fairly small. Most people wouldn’t have missed the train
three times. But there are likely some EB-3 to EB-2 upgrades, people who had
appeals pending and weren’t eligible to file adjustments before and people
whose I-140s may have been revoked and who have had to refile again.
Basically, a small group of applicants. Our number cruncher is predicting
about 5,000 applicants under the new acceptance dates. If there was a stash
of pending adjustment applications pending that Charlie Oppenheim failed to
consider (USCIS made this claim last week in its reply brief to our filed
lawsuit), why pick a number so ridiculously skimpy? Why not just pick a date
that’s more modest, but later than the virtually useless dates they
settled for the September 25th version of the Visa Bulletin?
And then it occurred to me that USCIS might have found a theory that would
allow then to take virtually no early applications and still claim they are
on board with Visa Bulletin modernization. Visa Bulletin modernization is
about allowing people who the Department of State and USCIS believe will
have an immigrant visa available within the fiscal year to file adjustment
applications. That is designed to maximize the number of green cards that
are issued in a year. And it is also a way to give relief to people waiting
years for their green cards to get the benefits of an adjustment application
earlier.
What is that theory? Under the Immigration and Nationality Act, 28.8% of the
140,000 employment-based green cards are available in the EB-2 category.
That’s 40,320. Per country limits of no more than 7% going to a country
mean that the maximum Indians and Chinese are guaranteed is 2,820 each. We
know a lot more than 2,820 Indians and Chinese are going to get green cards
in FY 2016. That’s because numbers flow to EB-2 Indians and Chinese from
many places – from the lightly used EB-1 category, from unused EB-2 numbers
from other countries, from leftover family numbers, etc. Charlie Oppenheim
at DOS doesn’t know precisely what those numbers are going to be (neither
did our number cruncher), but he can take some pretty educated guesses.
I suspect that USCIS (and possibly DOS lawyers) are taking the position that
they are only going to allow adjustments for numbers that are truly
guaranteed. And that would be limited to the 5,640 green cards available
under the per country EB-2 quotas to Chinese and Indian nationals. Which
would make a July 2009 acceptance date perfectly logical. Even though any
reasonable person would agree that there are going to be a lot more visas
available than 5,640 (and, as we indicated, we came up with a number almost
six times higher), USCIS and DOS could claim that Section 245(a) requires a
visa number to be available and the only numbers we know for sure are
available are those 7% numbers. Even though it is virtually 100% guaranteed
a lot more numbers are going to be available, the only number anyone can say
for sure is that 7% will be available to each nationality.
I came up with this idea yesterday, but wasn’t sure how to see if it was
true other than getting USCIS to admit it.
And then the November Visa Bulletin was released. USCIS claimed that the EB-
2 numbers moved backwards on September 25th because green card numbers
retrogressed and Charlie Oppenheim failed to account for this in his October
Visa Bulletin. EB-2 cutoff dates for India did retrogress between September
and October from January 1, 2006 to May 1, 2005. We were suspicious of
USCIS claiming this was the reason for the new dates because Charlie has
retrogressed numbers several times in the past in October only to move them
up again the following month.
That’s what happened today. Cut off dates in both the EB-2 Indian and EB-2
China categories advanced. EB-2 India jumped by 14 months to August 1, 2006.
But acceptance dates remained unchanged. How could this be? It makes
perfect sense if USCIS is taking the position that they only can use a
maximum of 2,820 numbers for India and another 2,820 for China versus the 29
,000+ available under the more sensible reading Charlie Oppenheim was using
for the first Visa Bulletin.
This, of course, is a way to twist what President Obama was aiming for with
his executive action. The 7% limit will have virtually no impact on ensuring
all green cards are issued each year and only a very small number of people
will get the advantage of filing an adjustment application early.
It would also be a big, big problem for USCIS which offered a very different
explanation of its actions in its response to our request for a Temporary
Restraining Order.
This new reading of Section 245(a) by USCIS is a very different view Section
245(a) than the agency has taken in the past. In the summer of 2007, USCIS
managed to accept 300,000 adjustment applications even though only 140,000
green cards are available for a whole fiscal year and 75% of the fiscal year
was over by that point. And just last month, USCIS announced that it had
used up all green card numbers for the fiscal year, but it would still
accept applications for the remainder of September (about five days). Under
the agency’s interpretation of Section 245(a) it’s using to explain
Visagate, neither of these things could have happened. Presumably, they were
using the Cyrus Mehta Thanksgiving Turkey theory when it suited them.
I don’t claim that I know for a fact that this is what’s going on. But it
’s the only explanation that fits our numbers and explains why we saw no
movement of the acceptance dates between October and November even though
the cut off dates (at least for India) jumped substantially. | c********1
发帖数: 220 | 2 他的意思是，最近几年都是龟速前进了。该回国的回国，该卖煎包的卖煎包，该洗洗睡
的睡去吧。 | i*******s
发帖数: 318 | 3 大家可以洗洗睡了. 不是开玩笑的.
和uscis打官司是唯一出路, tro败了 印度人也会打下去. 这点官司开始时候明白的
人都知道.
至于最后官司能不能赢 看双方耐力了. 07年的官司是08年才结案的 最后是输了. 但
是原告没上诉.
去年有个退休律师告uscis的 也是输了以后上诉变赢了.
要么回国 要么等待 要么激烈反抗 要么就告。没什么其他出路。 写信情愿睡3理你
第二排气uscis现在已经官方说了可以每月确认一次是不是honor.
【在 c********1 的大作中提到】
: 他的意思是，最近几年都是龟速前进了。该回国的回国，该卖煎包的卖煎包，该洗洗睡
: 的睡去吧。
| c*******n
发帖数: 2629 | 4 即使是EB2C，13年前还有6000多呢，5600左右绝对不够用啊。 | B*****l
发帖数: 1078 | | z*******i
发帖数: 2904 | 6 现在看来这个双排期对于老PD是有好处，按部就班的拿卡，心里大概有个时间线，对于
新PD来说，就少了以前能浑水摸鱼放水拿卡的机会 | h*y
发帖数: 1289 | 7 新pd过两年就成老pd了
这两年间140ead应该就已经实施了
说不定还有stem绿卡可以指望：）
【在 z*******i 的大作中提到】
: 现在看来这个双排期对于老PD是有好处，按部就班的拿卡，心里大概有个时间线，对于
: 新PD来说，就少了以前能浑水摸鱼放水拿卡的机会
| z*******i
发帖数: 2904 | 8 STEM绿卡我觉得太缥缈了，140EAD就不错了呵呵
【在 h*y 的大作中提到】
: 新pd过两年就成老pd了
: 这两年间140ead应该就已经实施了
: 说不定还有stem绿卡可以指望：）
| h*y
发帖数: 1289 | 9 140EAD应该是势在必行了，就看具体细节以及有没有AP了
STEM绿卡两年前的immigration bill里好像有的吧，后来给刚刚辞职的house speaker
卡住了。
【在 z*******i 的大作中提到】
: STEM绿卡我觉得太缥缈了，140EAD就不错了呵呵
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