Updated: EB Category To Receive 18,000 Additional Visas From FB Category

Please See Update: EB Category To Receive 121,500 Additional Visas From FB Category

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 2012 (which ended on September 2012), only 208,000 visas were allotted to family based visa petitions; instead of 226,000. This means about 18,000 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 18,000 visas in fiscal year 2013 (October 2012 to September 2013). Also see page 1 of demand data (which was updated on Feb 15), where total is set at 158,000 (instead of usual 140,000).

You must be wondering, would all these 18,000 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 (158,000 visas)	Extra visas per category
EB1	28.6%	40,040	45,188	5,148
EB2	28.6%	40,040	45,188	5,148
EB3	28.6%	40,040	45,188	5,148
EB4	7.1%	9,940	11,218	1,278
EB5	7.1%	9,940	11,218	1,278
Total	100%	140,000	158,000	18,000

 

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.  Remember each country is limited to 7% in each category.

EB2 Category:
Before: EB2 China can get max 7% * 40040 = 2802 visas.
Now: EB2 China will get 7% * 45188 = 3163 visas  (or 361 additional visas).

In EB2 Category, India and China are the only backlogged countries. Now each country (including India and China) will get 3163 visas each. The remaining unused visas from EB2ROW will flow back to retrogressed countries (EB2 India and EB2 China).

Since EB2 India is at Sept 2004 and EB2 China is at Feb 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 could mean EB2 India date could finally start moving forward before July 2013 visa bulletin - assuming EB3 to EB2 porting is low and DOS wants to start allocating FB spillovers this quarter. BTW, if you did not know, EB2 India dates have barely moved forward since May 2012.

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 3163 visas (instead of usual 2802 visas) this fiscal year. However (unlike EB2 category), all countries would be using up their allotted visas. This means the visa bulletin dates wont move a lot this fiscal year 2013 in EB3 category.

How soon would USCIS/DOS start allocating these 18,000 spillovers?
Its possible they might have already started slowly allocating them - since the FB "spillovers" are final and won't change. March 2013 Demand Data was initially released on Feb 8 and then updated on Feb 15 with additional 18,000 visas added in the EB category.  March 2013 visa bulletin was released on Feb 11 and in it Charles Oppenheim had made prediction for next three months.

Even though the March VB was released 4 days before demand data was last updated (on Feb 15), it seems that the DOS prediction of date movements might still be valid till the June 2013 visa bulletin (since most of the EB2 extra visas would be going to EB2 India and very small forward expected movement in EB3). Hopefully USCIS/DOS will update their prediction in the next visa bulletin. 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 in the next 1-4 months: (1) From FB to EB (all categories) - around 18,000 and (2) from EB4, EB5 and EB1 to EB2 (all countries) - around 13,000 - predicted by DOS Chief a while back. This is in addition to monthly 2802 visas allotted per country.

This might mean a big movement for EB2 India in July 2013 and August 2013 visa bulletin and small movement  (or small retrogression if demand is much higher) in September 2013 visa bulletin. The retrogression in September 2013 visa bulletin might be necessary to make sure that visa numbers stay within permissible limits in fiscal year 2013 (which ends on September 30).

Note: FB spillover to EB2 India is 361. 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.

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. 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 last year 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). The only difference is that the number is huge this year (18,000).

To be precise, FB category was allotted 207,535 visas (instead of 226,000 visas). This means 18,465 extra visas SHOULD be available to EB categories. However, the demand data states that only 18,000 extra visas WOULD be available. This means, as you guessed by now, 465 visas would be "wasted". Also DOS is working to have zero unused visas in FB category by moving dates faster in FB category (so that they would use up the quota faster). This may mean dates for FB category could slightly retrogress in September visa bulletin.

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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