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发帖数: 601 | 4 Is it this one?
January 25, 2010
[Recipient Name]
[Street Address]
[City, ST ZIP Code]
Sub: Mismanagement Led to Disadvantage of China Employment-Based Second
Preference in FY 2009
Dear Congressman/Congresswoman/Senator XXX:
I am writing to express my grave concerns regarding severe mismanagement of
the crucial visa number allocation process under of the Immigration Visa
Control and Report Division. I understand the value of your time and thus do
not write you today to expend it unduly on matters not worthy of immediate
attention.
Numbers and facts show severe mismanagement by the Visa Office with regard
to the way visa numbers were assigned to documentarily qualified applicants
of China Employment-Based Second Preference (EB2) in FY 2009. Specifically,
I want to bring to your attention that the Visa Office applied INA ACT 202(e
) to China EB2 incorrectly. As a result, there were 2,182 visas wasted for
China EB2, and China EB2 was the only disadvantaged EB2 group in FY 2009.
China EB2 lost 2,182 in FY 2009 because the Visa Office applied INA 202 (e)
to China EB2 incorrectly
Based on the Report of the Visa Office 2009, there were 11,246 visas
assigned to China Family-Based Preference category and 11,192 visas to China
Employment-Based Preference category in FY 2009. The total visa number made
available to China in FY 2009 was 22,438.
However, it was stated in the August 2009 Visa Bulletin that the per-country
limit for FY 2009 was 25,620 (24,620 for China). Therefore, given the fact
that China EB2 had huge visa demand and significant backlog, there were 2,
182 visa numbers remaining in order for China to reach its annual per-
country limit in FY 2009.
The Visa Office confounded the meanings of oversubscribed country and
country at ceiling, and applied INA ACT 202 (e) to China EB2 incorrectly.
Please see Appendix B for more details. As a result, China EB2 lost 2,182
visa numbers which otherwise should have been made available to qualified
applicants of China EB2 in FY 2009.
China EB2 is the only disadvantaged group in FY 2009
The Visa Office has shown vast inconsistency in the way of allotting visa
numbers to different countries. The numbers and facts show that China EB2 as
a group is unfairly treated no matter what the explanations might be. This
unfortunate situation is due to the mismanagement of the visa number
allocation process by setting too early cut-off date on China EB2, which
makes China’s backlog situation much worse. As a matter of fact, China EB2
is the only disadvantaged EB2 group. Some key numbers are listed in Appendix
C for your reference.
Summary
Legal immigration remains a long and exhausting process for many immigrants
and their families. Many wait more than five years for immigration visa
numbers to be available to them while their lives hang in the balance. Thus,
it’s very important to have a fair and transparent visa number allocation
process.
Based on the information above, I believe that the current way of allocating
visas to China EB2 doesn’t follow the INA strictly. Actions need to be
taken immediately to make the corrections and to prevent more visa wastage.
Therefore, I respectfully expect your assistance to resolve this situation
in the following ways:
1. Compensate additional 2,182 visa numbers to China EB2 in FY 2010 and
advance cut-off date of China EB2 accordingly.
2. In FY 2010 and subsequent years the Visa Office should assign visa
numbers to China as close to the per-country limit as possible by all means,
such as but not limited to, assigning visa numbers unused by China Family-
Based Preference to China EB2 every quarter.
3. Discuss these matters with members of the subcommittee on Immigration
and members of the Committee on the Judiciary and explain to them the
necessity of urging the Visa Office to follow the INA strictly.
If you have any questions about this, please contact me by phone at [PHONE
NUMBER] or by e-mail at [YOUR EMAIL ADDRESS] or c*****[email protected].
Thank you very much for your time and consideration.
Sincerely yours,
[YOUR NAME], Resident of the [ __th] District in the State of [STATE]
[YOUR NAME], Resident in the State of [STATE]
[YOUR NAME], Resident of the [CITY, COUNTY, STATE]
A China EB2 applicant and Member of New Immigrants United
Appendix A
Provisions of the Law and Numerical Limitations on Immigrant Visas
Outlined below are the basic elements of the system applicable at present.
1. Numerically limited preferences
INA 201 sets an annual minimum family-based preference limit of 226,000. The
overall ceiling for the employment-based preference category is at least
140,000 which is divided into five categories and is expressed in
percentages of the annual limitation in INA 203(b).
2. Per-Country Limits
In addition to the overall limits, the INA 202 specifies a per-country limit
to preclude preemption of the annual numbers by one or more foreign states
and to avoid monopolization. The per-country limit is 7% of the combined
visa total available to family-based and employment-based preference
immigrants. The per-country limit is a cap, not a quota set aside for
individual countries, as not all the countries in the world, of course,
could reach 7% of the overall limit (7% of 366,000 is 25,620). The American
Competitiveness in the Twenty-First Century Act (AC21) removed the per-
country limit in any calendar quarter in which overall applicant demand for
Employment-Based visa numbers is less than the total of such numbers
available.
Appendix B
Why China EB2 lost 2,182 visas because the Visa Office
incorrectly applied INA 202 (e) in FY 2009?
An oversubscribed country is a country whose visa demand exceeds the per-
country limit. An country at ceiling is a country which the Visa Office
determines and allots total immigrant visas more than the per-country limit.
It is very clear that the definitions of oversubscribed country and country
at ceiling are different. And the prorating provisions of INA ACT 202 (e)
only apply to country at ceiling.
INA ACT 202 (e) Special Rules for Countries at Ceiling. - If it is
determined that the total number of immigrant visas made available under
subsections (a) and (b) of section 203 to natives of any single foreign
state or dependent area will exceed the numerical limitation specified
in subsection (a)(2) in any fiscal year, in determining the allotment of
immigrant visa numbers…
When Visa Office applies INA ACT 202(e) automatically to an oversubscribed
country, it indicates that the Visa Office has already determined to assign
visas more than the per-country limit, thus making that oversubscribed
country a country at ceiling. Actions such as cut-off date advancement need
to be taken to ensure visas usage till its per-country limit. On the other
hand, if for any reason the Visa Office does not assign visas more than the
per-country limit, that country is no longer a country at ceiling, and INA
ACT 202(e) does not apply to that country even though it is still an
oversubscribed country. Thus the prorating provisions don’t apply to the
categories of that country. The flowchart in the next page shows it in more
details.
In FY 2009, the total visa numbers assigned to China (22,438) didn’t reach
the annual per-country limit (24,620), therefore INA ACT 202(e) shouldn’t
have been applied to China EB2. As a result, China EB2 shouldn’t be limited
by the prorating provisions and should have used the unused visas from
China Family-Based Preference. But the Visa Office confounded the meanings
of oversubscribed country and country at ceiling, and applied INA ACT 202 (e
) to China EB2 incorrectly. As a result, in FY 2009 China EB2 lost 2,182
visa numbers that should have been made available.
Appendix C
China EB2 is the only disadvantaged group in FY 2009
The Visa Office has shown inconsistency in allotting visa numbers to
different countries under the authority granted by the INA. The following
table summarizes Family and Employment Preferences visa numbers made
available to some countries during Fiscal Year 2009.
Country Family Preference
(a) Employ. Preference
(b) Grand Total
(a)+(b) Comparison with the annual limit EB2
(c) EB2 visas assigned except spillover EB3
South Korea 1,688 14,212 15,900 < 25,620 4,991 4,991
China 11,246 11,192 22,438 < 24,620 3,046 2,803
India 12,956 19,945 32,901 > 25,620 10,124 2,803
Mexico 56,861 8,346 65,207 > 25,620 4,566
Philippines 15,277 8,387 23,664 < 25,620 5,540
Data are from Immigration Visas Issued and Adjustment of Status Subject to
numerical Limitations (by Foreign State Chargeability), Report of the Visa
Office 2009.
http://www.travel.state.gov/visa/frvi/statistics/statistics_459
According to the Visa Office’s statement that “the prorating of numbers
for an oversubscribed country follows the same percentages specified for the
division of the worldwide annual limitation among the preferences”, every
Employment-Based Preference of an oversubscribed country should be entitled
to 2,803. However, Mexico EB3 and Philippines EB3, both in oversubscribed
categories, received 4,566 and 5,540, which were 63% and 98% more than 2,803
, respectively. If the Visa Office is so keen on setting the 2,803 annual
limit on China EB2, the same criterion should also be applied to these
categories as well. Although we understand that it is hard to make visa
numbers available to be exactly 2,803, 63% and 98% more than 2,803 are
definitely unreasonable.
Moreover, the visa prorating provisions of INA ACT 202 (e) doesn’t apply to
South Korea since it is not a country at ceiling, therefore EB2 South Korea
could utilize the unused numbers from its family-based preference, which
resulted in 4,991 EB2 South Korea visas made available in FY 2009. Using the
same strategy, once the Visa Office decides not to assign visa numbers
unused by China Family-Based Preference to EB2 China, China is no longer a
country at ceiling and the prorating provisions of 202 (e) shouldn’t be
used to limit EB2 China visas to 2,803. Therefore, just like EB2 South Korea
, EB2 China should have used the unused visa numbers from China Family
Preference until the total visa numbers assigned reached the annual per-
country limit.
However, the total visas assigned to China Family-Based Preference during FY
2009 were 11,246, which were 4,574 less than the China Family limit of 15,
820 (7% of 226,000). This huge decline (4,574 is 29% of Family limit 15,820)
should have brought enough attention to the Visa Office for it to take
immediate action and assign those unused numbers to China Employment
Preference even if it was the last quarter or month of the fiscal year.
Therefore, in this situation, China EB2 should be set a cut-off date LATER
than EB2 India since EB2 India could only use spillover numbers while China
EB2 could use spillovers and the unused visa numbers from China Family
Preference.
But, referring to the visa bulletin for the last quarter of FY 2009, we know
that the Visa Office set the same cut-off date of India EB2 and China EB2.
It indicates that the Visa Office treated the 2,182 visas as spillovers and
assigned those numbers to EB2 of other countries. These numbers and facts
show that China EB2 as a group is being unfairly treated. As discussed in
Appendix B, that unfortunate situation is due to mismanagement of the visa
number allocation process by setting too early cut-off dates on China EB2
which makes China’s backlog situation much worse. As a matter of fact,
China EB2 is the only disadvantaged EB2 group. |
