EB Category To Receive 10,000 Additional Visas From FB Category In Fiscal Year 2014

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 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.

For fiscal year 2013 (which ended on September 2013), family based categories were allotted a quota of  226,000. However due to lower demand and also delay in moving dates forward, around 10,000 visas were unused in the family based category.

According to law, any unused visas from family category will flow to employment based category. This means EB category will be getting an additional 10,000 visas in fiscal year 2014 (October 2013 to September 2014).

Currently according to demand data, the annual limit is set at 148,000 (instead of usual 140,000). However according to  Annual Numerical Limits for Fiscal Year 2014, the limit is set at 150,000 for EB categories. Since the annual numerical limit document is more recent, we will assume that the spillover is 10,000 (instead of 8,000).

You must be wondering, would all these 10,000 visas go to EB2 India + China (since in EB categories, spillovers go from EB4 + EB5 --> EB1 --> EB2 --> EB3). This would not be the case. For spillovers from FB category to EB category, all EB categories would be getting "equal" spillover, as defined by law.

	% of total visas in each category	Old Total Visas (140,000 visas)	New Total Visas (150,000 visas)	Extra visas per category
EB1	28.6%	40,040	42,900	2860
EB2	28.6%	40,040	42,900	2860
EB3	28.6%	40,040	42,900	2860
EB4	7.1%	9,940	10,650	710
EB5	7.1%	9,940	10,650	710
Total	100%	140,000	150,000	10,000

 

Does this mean all countries in each category will get equal spillover? The answer is yes. The only difference is the number of visas have increased per country.  However each country is limited to 7% in each category.

EB2 Category:
Before: EB2 India can get max 7% * 40040 = 2802 visas.
Now: EB2 India will get 7% * 42,900 = 3,003 visas  (or 201 additional visas).

In EB2 Category, India and China are the only backlogged countries. Now each country (including India and China) will get 3,003 visas each. The remaining unused visas from EB2ROW will flow back to retrogressed countries (EB2 India and EB2 China) typically during last quarter of FY 2014.

Since EB2 India is at November 2004 and EB2 China is at November 2008, we expect EB2 India would get most (or all) of the additional unused visas (since USCIS/DOS tries to "level" the priority date for all countries while calculating spillovers in each category). This will happen during last quarter of FY 2014.

This could mean EB2 India date could finally start moving forward around July 2014 visa bulletin - assuming EB3 to EB2 porting is low and DOS wants to start allocating FB spillovers.

It is currently hard to predict the amount of unused visas from EB2ROW to EB2 India (and China) because in the next few months (a) the demand from EB2ROW can increase/decrease and (b) the demand from EB3ROW Porting to EB2ROW can increase/decrease.

EB3 Category:
EB3 category is different. All countries are retrogressed. This mean every country in EB3 category (just like in EB2 category) will get a maximum allocation of 3,003 visas (instead of usual 2,802 visas) this fiscal year. However (unlike EB2 category), all countries would be using up their allotted visas.

How soon would USCIS/DOS start allocating these 10,000 spillovers?
EB spillovers are typically allotted in last quarter of fiscal year. This also helps USCIS/DOS estimate demand and reassign any visas which may not be used to other categories. FB spillovers can be allotted anytime, since the exact count is known.

You can also check the I-485 pending inventory to get an idea of how many people are ahead of  you.

Conclusion:
Remember there will be two different spillovers: (1) From FB to EB (all categories) - around 10,000 and (2) from EB4, EB5 and EB1 to EB2 (all countries). This is in addition to monthly 2802 visas allotted per country.

This might mean a big movement for EB2 India in July 2014 and August 2014 visa bulletin and small movement  (or small retrogression if demand is much higher) in September 2014 visa bulletin. The retrogression in September 2014 visa bulletin might be necessary to make sure that visa numbers stay within permissible limits in fiscal year 2014 (which ends on September 30).

Note: FB spillover to EB2 India is 201. In addition, EB2 India will  be getting spillovers from EB4, EB5, EB1 and EB2 ROW (unless they use up all their quota). Due to changing demand each month, we currently cannot estimate how much EB spillover will go to EB2 India.

Many of our readers are wondering why there are so many unused visas left from FB category; especially when there is a huge backlog of over 20 years in some FB categories. It is probably due to miscommunication and/or inaccurate/old numbers passed between various groups involved which is leading to waste of so many visas. In addition, demand can be lower than expected. This would not be known till at least 1-2 months later. Hence there could be a delay in moving dates forward.

As you may have guessed by now similar waste happens in EB category too. Per law, all unused visas in EB category are are assigned to FB category in next fiscal year. However EB quota was fully used up and hence there is no spillovers to FB category.

There were many bills introduced in last few years to recapture these unused visas, but none of them passed Congress. Two examples are: H.R. 3119 and H.R. 3012. Charles Oppenheim (DOS Chief) is doing his best to prevent these wastes in both categories.

BTW, in some years, there has been zero wastes (unused visas) -  whereas in some years, there has been more than 140,000 visas allotted. For FY12, EB category received 144,648 visas (Link - scroll to the last page). This means in FY 2012 EB received over 4,000 unused visas from FB category. EB getting unused visas from FB category has been going on since a long time (1997). EB category received 18,000 spillovers last year.

Some people maybe wondering why EB has 7% cap on each country. The reason for the cap is because this cap was adopted from family based category where each country is capped at 7% to allow diversity of immigrants. Hence EB also has a cap of 7% for each country (which is ironical because federal law prohibits discrimination during hiring based on country of origin - but itself restrict employment visas based on country of origin/chargeability).

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