The February visa bulletin contains the bad news -  "U" for India EB2:

D.  INDIA EMPLOYMENT SECOND PREFERENCE HAS BECOME “UNAVAILABLE”

Despite two retrogressions of the India Employment Second preference cut-off date, demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months.  As a result the annual limit for the India Employment Second preference category has been reached, and the category has become “unavailable” effective immediately. 

Why did this happen?

It's all about inventory management.  In a perfect world, the USCIS would accept adjustment of status applications, and process them in an orderly fashion - first in, first out as required by law.  Visa numbers would be used as cases were completed.  And as visa numbers were used, the State Department would analyze the demand, and set priority dates in the monthly visa bulletin so the inventory of the USCIS and US Consuls overseas would be replenished at a sufficient rate to allow all the employment based visa numbers to be utilized each fiscal year.

But the world is not perfect.  Sometime in the not too distant past, the USCIS quit processing their inventory in a predictable fashion.  Completion of cases somehow stalled or stopped.  The USCIS developed an inventory of 100s of thousands of adjustment applications it wouldn't - or couldn't - complete.  In the meantime, new cases got filed.  In mid 2007, at its current rate - and according to its own predictions - the USCIS indicated that it would not complete enough adjustment of status applications to use half the available employment based visa numbers.

That's when the State Department made virtually all categories "current" - and that's when the USCIS decided to start adjudicating cases in what was a wild - and ultimately ineffective - attempt to stop their "shelf inventory" from growing even worse.

The result:

USCIS actually completed adjustment of status applications - an entire fiscal year's worth - in a matter of days. 

And with another 300,000 or so new adjustment of status cases filed in July and August, 2007, the USCIS "shelf inventory" grew anyway.

The utilization of visa numbers is now totally within the control of the USCIS.  The State Department is in a totally reactive role as USCIS completes cases using criteria which are at best opaque.

So............. despite efforts by the State Department to set a priority date cutoff to allow visas to be issued in orderly fashion to the oldest cases first over the course of the fiscal year - and not withstanding that the India EB2 category was retrogressed twice - USCIS utilized the entire fiscal year's worth of India EB2 visa numbers in just over three months.

Will India EB2 open up again?

• Yes - but not before October 1, 2008

Could it happen in other categories?

• Yes - it is in the hands of the USCIS.  

Is India EB3 now better than India EB2?

• Probably not - at least for newer priority dates.

And was this legal????

• Maybe not.  Section 203(e) of the Immigration and Nationality Act provides that employment based visas are to be made available "in the order in which a petition in behalf of each such immigrant is filed with the Attorney General...."  

We know that the USCIS has adjudicated newer cases ahead of some older cases - some of which have been on their shelf for years.  We'll know if their actions are legal after someone sues them and a court tells all of us if they acted properly.

The above article comes from the website of Jay Solomon. Mr. Solomon is one of the best Immigration lawyers in this country.

This Week in Congress

Congress Not in Session

Both the Senate and the House of Representatives are currently in recess.

There is no legislative business scheduled in the House of Representatives during the recess. The House will resume work on Tuesday, January 15.

The Senate, while not in session, will convene for pro forma sessions every few days instead of a typical recess in order to block President Bush from making recess appointments. No legislative business is expected. The Senate will resume work on Tuesday, January 22.

Policy Spotlight

Assessing the Economic Impact of Immigration at the State & Local Level

Last month, FAIR released a report on the purported "costs" of undocumented immigrants to the residents of Iowa. The report, clearly intended to coincide with and influence the results of this year's Presidential caucus and primary elections, focuses on three main areas--education, healthcare and incarceration--and states that undocumented immigrants exact enormous costs for Iowa residents in each. What is left unsaid in the report, however, is the fact that the figures put out by FAIR are deliberately misleading and manipulated to achieve their desired result. For example, in calculating the number of undocumented immigrants in Iowa, FAIR includes both undocumented immigrants AND the US citizen children of undocumented immigrants, thereby inflating the actual number. In other words, what FAIR presents as a work of objective scholarship in truth amounts to little more than shoddy methodology used to churn out yet another propaganda piece aimed at discrediting and demonizing immigrants, and one which flouts the US Constitution, no less, since with very limited exceptions, children born in the US are US citizens by virtue of the 14th amendment, no matter the immigration status of their parents.

To set the record straight on the issue, the Immigration Policy Center has examined a wealth of data derived from recent government, university and NGO studies. The IPC has compiled this data in the form of a report entitled "Assessing the Economic Impact of Immigration at the State & Local Level." Not surprisingly, the report contradicts FAIR's deliberately misleading contentions and exposes them as little more than typically empty, anti-immigrant rhetoric. Far from exacting an exorbitant "cost" as the FAIR report might lead one to believe, the IPC report makes clear that undocumented immigrants, and immigrants in general, are net contributors to the public treasuries and economies of many states and localities.

The complete report is available on the IPC website at “Immigrationpolicycenter.org”.

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