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Hello All,

First and foremost, i must thank everyone from IV, who is working tirelessly to resolve the issues of retrogression in the GC process. As an affected individual I am very grateful that leaders of IV are ready to contribute so much effort for its goals. And even though I do not actively work for the IV agenda, I have contributed money to some IV action items.

I have a question/suggestion regarding the IV agenda. On IV's about page, pt number 2 asserts amongst other things,
The Discriminatory Per-Country Rationing of Green Cards That Exacerbates the Delays.

and further in the same point

We do not allow employers to discriminate hiring based on their nationality or country of origin. Therefore, the employment-based immigration, which is a derivative benefit of employment, should also be free from rationing based on nationality or country of birth.

I am curious to know what is the "legal" strength of these assertions is. Are they just "moral" statements or can the validity of these statements be tested in the legal framework of this country? In other words, my question is what is the constitutionality of the "Per Country Caps" in Employment / Family Based Immrigration procedures.
A lot of Laws and Statutes have been challenged in the Judicial System of USA. And many more are challenged every year. And if the laws are not constitutional then they can be repealed.

I am sure the leaders of IV must have thought about this argument however a quick search of the forums with 'constitutionality' as the search term did not return any results.

IV's efforts to utilize Lobbying to bring about change to alleviate/eliminate retrogression are certainly beneficial. However, if IV has not already considered and eliminated this legal argument, then it should explore whether there is any substance to this approach.

Hence this post. Below are some of the links that might be relevant.

wikipedia article on constitutionality (http://en.wikipedia.org/wiki/Constitutionality)
wikipedia category on US immigration case law (http://en.wikipedia.org/wiki/Category:United_States_immigration_and_naturalizat ion_case_law)

thanks and sincerely,

--soljabhai


I am not a lawyer. Here is my understanding as a lay man:

What is constitution?

A: At some point of time, group of people, with having confidence from
majority of people, with a centralizing tone of some common
philosophy/ethics, create the framework of regulations with a goal to make
society orderely, to make sure that common good of people remains
prevalent and maintained and assures the penalty for deed done agianst
common good and breaking the common order of the society. Wise ones,
accepting the limit of individual capabilities, understanding the different
needs of the society at different time, keep windows opened to improve
the "base" constitution with making sure all checks and balances do not
allow the misuse and hecnce the word "Amendment/s" have the existence.

Now there has to be some base ground when base consitution is prepared.
What that could be? During the process of human evolution, with accumulated experience of centuries, human societies have established some common practices which we now name "Ethics" and amazingly many are similar across many culture. For example, Burglary is considered crime in each and every society without any question or difference. Why?.. I do not like somebody snatches away my chain as in my mind I have established my ownership to that chain. You also do not like it somebody snatches away your car.If there are only two humans on earth, things might have been simpler considering one is burglar of those two. But here in society now every body has to establish the proof that s/he is aowner of something and somebody else snatches that away then it is not good. So wise ones decided (to keep
controlled and organized society) made a rule : "From today we will call the act of snatching something away from somebody an act of crime if the person can prove that s/he is the original owner of that thing and let's call that person a "burglar" because he snatched away the thing" Now it was suited to everybody because it was protecting their belonging so that was established as "Ethics" and stories of "criminal behaviour"were created by every society for snatching away the thing from somebody. That make every human understand the fact that snatching away is bad thing
(if done openly:), If lawyer snatches away big money from your pocket .. no it is not a crime or that matter USCIS... just kidding :))

Now making story short, after 200/300 years of evolution, USA has legally decided to push the "Ethics" of employment: "Equivalent Oppertunity to all Citizens without race, creed, color, country of origin" and "Skill is the criteria of an employment" Now when these ethical and progressive principals are already implemented for common good of citizens, it should be implemented for foreign labor (non immigrants/immigrants).

Can we "constitutionally" label some person that, hey you will be called burglar if you snatches thing away from US born person but you will not be called burglar if you snatches away the thing from pakistani or Sweedish or Chiense who has just arrived in this country?

So bootmline: If at all constitution is permitting "per country based ceilings" then
we will have to fight to change that because it is not right.

Vdlrao

Appreciate your thoughtful and encouraging posts. Continuing with Ron Gotcher's line of reasoning:

"It is worth mentioning that the CIS has never adjudicated more than 85,000 EB AOS cases in a single fiscal year - though this year it is possible they may process as many as 110,000 if they go all out. Keep this fact, together with the size of the backlog, in mind when trying to estimate how long it will take them to get to your case when your priority date becomes current."

How do you reconcile USCIS productivity with the number of visas that are available? In other words, although there may be sufficient numbers available to move the priority dates forward in the next fiscal year, USCIS can only adjudicate a limited number of cases per year.

Till now USCIS used to hide behind Name Check as stumbling block and reason for the low number of EB 485's approvel. But now it is not an issue.

They will be in great pressure to go all out and do the job, just like they did during July fiasco when they approved 60,000 I485's in one month.

vldrao has done good job and we are thankful to him

huge move for EB3 ROw. it was expected I think.

The reason we have greater supply of workforce in IT from one specific country is not because of skills or talents. Almost every IT workers from ROW and China came to the US as a foreign student after TOEFL, GMAT, GRE, internship and only then landed a job in IT. Whereas the preponderence of IT workers from India came here through L1/B1/H1 sponsorship through bodyshops. Attending school, preparing for generalized tests requires time, money and patience. This is one big factor why the supply curve is skewed.


I am an Indian and also came as a student giving GRE/TOEFL. So do not generalize that IT workers from India came here via L1/B1 route. Some of them did but some did not. I know lot of Indian who came here to study.

If India is producing more people qualified in these skills then its not their fault.

your past experience is doing this talk.. not only you, 99 % of people I met have the same animosity towards other desis who are walking towards them. unfortunate but true.

if you don't give a damn about Amway, thats OK. no outsiders need to know that and surely not me as I will not talk to you about amway in the first place. thats the whole point. no one should rub it on others. sometimes relatives/friends go a little overboard trying to sell this pitch but that OK. its between 2 people who know each other and its just between them.

Hi Gopi,
Good post. But tell me why should i give a damn about either Amway or BWW? I don't.

It is horribly insane to talk to your business ambitions to a stranger. Every person is different and I personally take it offensive when someone I don't know comes and bothers me with his/her business nonsense. I am sure there are many people who think in the same way.

In the beginning, whenever a I came across a Desi in a mall or in a public place, it used to make me happy. Now, I always suspect that it could be a Amway SOB who is coming to me with his trash bag.

By the way, Gopi, this is nothing against you personally.

To all Amway street walkers, get the hell out of my way. I don't want to hear your nonsense. Period.

Thank you samay for taking time to answer my question.
My PD is Apr 06 EB3-India. I filed 485 on Jul 23, 2007.
Can I continue working for Company B until GC is received? or should I join company C before that?

Whats your EB3 PD. You can join company C anytime assuming that it has been more than six months since you filed your I-485. Company C can start the EB2 process should you choose to. However bear in mind that this process will also take some time.

Originally Posted by vrbest View Post
Hi,
I am on H1B (7th year and got extended for 3 yrs) and applied 485, received EAD from company A (140 approved).

I am asked to join Client by Company A due to some benefits both of us would receive. But Client wont support H1 so I need to use EAD.

Since EB3 is in very bad situation, Can I file new Perm, 140 and port my PD for EB2 using Company C for future position? I have position, salary and exp required for EB2. When should I join Company C if I choose this route?

Thanks in advance!

I just did same.. I just asked to make sure we are filing on first day..


ok u guys have forced me to pose the same question to my HR/Attorney...awaiting response.

You can find some bad things about Canada here -
www.notcanada.com

The criticisms of this website are LAUGHABLE. The Economist's quality of life index has rated Canada and Australia the top countries on earth to live in, overwhelming, year after year after year after year!

Vancouver, Calgary, Toronto, Melbourne, Sydney and Perth consistently dominate the top 10 cities in the world to live. 6 of the top 10?

Having spent enormous amounts of time in both those countries I can tell you they are wonderful, sensible places to live.

The index takes into account, cost of living, earnings capacity, safety, etc.

Canada probably has one of the most rosey futures on earth. It has an abundance of resources, a tiny population and ironically, global warming is adding to its opportunities. Both countries have avoided a single year of recession since 2000, are likely to benefit for ever-higher walls to migrants in the US, and on top of that, both governments continue to operate under surplus budgets.

Cost of living is actually far below that in places like NY and California.

Health care, while not top notch, provides better care on average to more people than is likely to be found in places like the US. Particularly for people that are older and more likely to need it.

Education is infinitely better. US Public schools are atrocious.

As for the weather, well duh! :) The weather in Minnesota, Chicago, New York and Detroit wasn't that much better last time I looked! And Vancouver is mild and stunning.

Yes, taxes are higher. How do you think these things are paid for? If you think it's a dog eat dog and you think that the state shouldn't provide education and healthcare, then that's fine. Canada and Australia just aren't for you!


Anyway, both countries have advantages. I love the U.S. and that's why I'm here. But don't let an inarticulate and unfounded set of ridiculous statements turn you off. Do you own research and make the choice that is right for you!

I have built a very simple EB2-I Visa predition model

Making following assumption

15000 new EB2 ROW I-485 applications
12000 new EB1 I-485 applications
EB4/EB5 use 70% of allocated visa (30% spillover)


EB2 Visa Bulletin prediction for FY 2010
Bulletin Quarterly-spillover Annual Spillover
Oct-09 22-Jan-2005 22-Jan-2005
Nov-09 22-Jan-2005 22-Jan-2005
Dec-09 31-Mar-2005 1-Feb-2005
Jan-10 31-Mar-2005 15-Feb-2005
Feb-10 31-Mar-2005 31-Mar-2005
Mar-10 31-Mar-2006 31-Mar-2005
Apr-10 31-Mar-2006 31-Mar-2005
May-10 31-Mar-2006 31-Mar-2005
Jun-10 15-Oct-2006 31-Mar-2005
Jul-10 15-Oct-2006 30-Sep-2005
Aug-10 15-Oct-2006 30-Apr-2007
Sep-10 31-Mar-2007 30-May-2007

I would be very happy if your predictions come true. But it appears you have not taken into consideration of the fact that thousands of EB3 might move over to Eb2.

I felt very bad and compleately moved when I was read about Mehul at that time. He was not able to get the GC in time just because he was born in India, even though he is from Fiji. During the last days of his life he was more worried about his family settlement, than his death, and moved them to sweeden. I hope this kind of sitution wont repeat to any immigrant.

http://immigrationvoice.org/forum/showthread.php?t=15611


For things like this not to repeat, we need a legilation change so that it doesnt matter which country you are from and which EB category you are in, and make sure that there wont be years long back logs.

When can I get my gc based on these uscis data for sept 2005 eb-2.Please suggest me.

100% by this time next year.

Can somebody who can access the document put out the important points/changes that are in there?

The difference between your idea and mine is your thinking is still stuck in the 16th century. He is Indian, he is Chinese, he is Mexican etc, while I see everyone as human beings. There lies the difference.

--Oh homo sapien!! What was my idea again? Where did you get 'my idea vs your idea' from? I did not propose that country cap be enforced.

EB Immigration is just 12% of all immigrants. How can it affect diversity of the country? With all the country quotas in place,

--What if 10% a year from one country continues for few years...

US is becoming hispanisized with Hispanics slated to become 25% of the population ! So much for the much touted 'diversity' !

--There are several factors influencing high hispanic population in this country. I am not sure what the link is here?? If the system is failing to ensure diversity, let us do away with it completely...

I've read other people's comments in this thread about how Cognizant is misusing EB1 category. I know a couple of folks who did that. This is something that should be brought up to the right people's observation. I plan to submit WH-4 atleast to begin with, against this company. Please PM me if you know anyone else who frauduently represented himself/herself for EB1 category.

While you are at it, can you please also request USCIS to revoke the EADs they issued to many EB2/EB3 folks and their spouses in the July of 07 when their PDs were nowhere even close to the being current in the previous months of the same year?

--Any country's immigration policy has to have some control measures built into it. I cannot imagine any country opening its gates wide open for the entire world to migrate into her without any limitations. So the question is, whom to "restrict" and whom to allow? This leads to the same argument, do you see this "restriction" as discrimination? There are others who see as fair "reservation" for them.


there is no "reservation", the nature of the clause is a cap, it does not give another country a minimum quota, it is written as a restrictive provision. and again- just because it benefits someone else does not make discrimination "right", in the strictest sense. right and wrong when it comes to discrimination are not relative. and if you believe they are, it's mighty slippery slope my friend because it does not take time to find yourself on the other side.

--Good question. If we look at what qualifies a country to be included in the lottery program (oversubscription etc?), it would again lead to the "balancing" intent with regards to immigration.


so why the double dipping? if the balancing is done, why the country quota? the result is that as i said more bangladeshis come in than indians...so what does over subscription mean in the end? again...why the need for the diversity lottery? the country quota already balances things....or not?

"either it's wrong or right. the caste system is wrong, from every side of the fence. it may benefit some and hurt others. but it's wrong, wrong and wrong.
same for this country quota. sure it helps some, and looks good from "their side of the fence". that does not change the fact that it is wrong."

--You are opining that it is wrong. You cannot state that it is a fact


you sound suspiciously supportive of the caste system. i will say it again. such a system is wrong. i do not care which side of the fence you are on. was depriving blacks from voting wrong? or was it ok from the white side of the fence? please think before you post.
there is a difference between "something benefiting me so i justify it and fight to keep it" and being right or fair. everyone fights to keep what they have. sorry, still not right. and if you still feel the caste system can be justified as right from your (or any) side of the fence then let's stop here, we have no common ground. and i speak as someone with sufficiently "high caste" to have not suffered from it (so you know my side of the fence).

one last thing, i find it hard to believe you are terming as "right" the idea that I as an individual should be held back 10 years longer than my colleague because of where i was born. any way i look at it...sorry...just not right.

I am titled towards this idea. We can say its hard to get a mortgage with the status pending..

But nobody likes my idea ? Premium processing @$10K. I am sure there will many who would like to do it, but based on response I got, I am doubting now.. Anyone who thinks this can be proposed too?

But pls keep calling on 5882.. I still feel there is a chance..

what I meant was... you can reevaluate your situation from India.
Since there is nothing there in Canada anyway.

This is from personal experience. I went through the canadian PR also and now have lost it. I have some friends in Canada and India who had to move because of failure to file for GC before 6yr H1. My view of Canada and other feedback is

It is not a first world country as they want you to believe.
The cost of living is very high though the salary is very low.
Cost of goods is almost the same or most of the time higher than in US.
Medical is by state (where applicable) but doctors are not good and the wait time is large.
Taxes are very very high.
I can go on and onnnn...

My advice which will save you almost 3k-6k is dont do it if you are waiting for GC. Else you can do it at a short notice. The other options are, if you dont like 5year wait time from India, is to come back in H1 to the US and again reapply. At least this way you know how your GC turned out.

---DISCLAIMER: ABOVE ARE MY VIEWS ONLY AND MAY BE FALSE---

As far as i can tell, the main issue is that there are not enough visas for Indian applicants. The possible EB1 misuse is a sideshow.

Currently, the EB2-I wait time is 20+ years. Even if there are no EB1 applications the wait time would reduce to 10+ years. EB3-I wait time is probably more than the life span of most individuals.

What you say can certainly happen, but I beleive that the pressure on USCIS is exponentially greater after last summer. People are watching their every step very closely. They got away with their inefficiency in prior years because the bottleneck was not USCIS - it was DOL that took a zillion years to clear labor petitions. Additionally the visa recapture of 2000 ensured no retrogression until 2005. Even after 2005 there were very few 485's to approve because of a) very low perm applications/approvals in 2005 and early 2006 and b) all the 2003/2004 labors were stuck in BEC's and were approved only in late 2006 or early 2007 (like your truly - mine was actually an RIR but the BEC classified it as Traditional Recruitment and began recruiting for the position - but thats another story).
Net net; USCIS inefficiency was masked under DOL's backlog - but now their transgressions are out in the open and they cant hide anymore behind DOL especially after last summer.

As much as Ron Gotcher has been accurate in the past, I think he is missing the point this time. At an ulterior level he needs to show USCIS in poor light because he only recommends CP for his clients. If I were his client and I hear him say that this year USCIS is different then I am bound to switch over from CP to AOS!

I know. That is what I am exactly saying. All our calculations will be true when USCIS works efficiently for this year and continues to do so. And we all are hoping for that.

Mayawati, Jayalalitha and Chandrababu have a good chance. I think it will be Jayalalitha.