1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

Reinterpretation Of The Quota Statute/recapture Of Visas

Discussion in 'Definitional changes/clarifications' started by Ron Gotcher, Mar 11, 2015.

  1. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
    To help move the discussion along, I'm posting the text of the relevant statutory provisions:


    Sec. 201 Worldwide Level of Immigration


    In general.--Exclusive of aliens described in subsection (b), aliens born in a foreign state or dependent area who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence are limited to--

    . . .

    (2) employment-based immigrants described in section 203(b) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(b)), in a number not to exceed in any fiscal year the number specified in subsection (d) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year; and

    . . .

    201(d) Worldwide level of employment-based immigrants.--

    (1) The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to--

    (A) 140,000, plus

    (B) the number computed under paragraph (2).​

    (2)

    (A) The number computed under this paragraph for fiscal year 1992 is zero.

    (B) The number computed under this paragraph for fiscal year 1993 is the difference (if any) between the worldwide level established under paragraph (1) for the previous fiscal year and the number of visas issued under section 203(b) during that fiscal year.

    (C) The number computed under this paragraph for a subsequent fiscal year is the difference (if any) between the maximum number of visas which may be issued under section 203(a) (relating to family-sponsored immigrants) during the previous fiscal year and the number of visas issued under that section during that year.​

    . . .

    203(d) Treatment of family members.--A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.
     
    GeorgeCostanza likes this.
  2. sigler

    sigler Junior Member

    Messages:
    131
    Likes Received:
    15
    Trophy Points:
    18
    Is the wording for FB visas regading spouses and children the same as what you posted above?
     
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
  4. s_gan

    s_gan Super Moderator

    Messages:
    5,316
    Likes Received:
    5,438
    Trophy Points:
    113
  5. Kamakazee

    Kamakazee Super Moderator

    Messages:
    2,698
    Likes Received:
    1,368
    Trophy Points:
    113
    Plus there is minimal effect in counting out EB derivatives since studies show that more than 87% of them are already in the US.
     
  6. sigler

    sigler Junior Member

    Messages:
    131
    Likes Received:
    15
    Trophy Points:
    18
    Do you think there's enough difference for the Administration to reinterpret the quota statute for EB but not for FB? I honestly didn't see much of a difference at all, but I may be looking in the wrong place.
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
    I think they will reinterpret it for EB only.
     
  8. HUDA

    HUDA New Member

    Messages:
    8
    Likes Received:
    1
    Trophy Points:
    3
    So what will happen to the PD of the FB applicants if they reinterpret it to EB only? I am sorry If I am asking you the same question again!
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
    There would be no movement in that case.
     
  10. sigler

    sigler Junior Member

    Messages:
    131
    Likes Received:
    15
    Trophy Points:
    18
    Wow, I remember you had a different opinion on that, that if they reinterpreted the rule for EB it would also apply for FB... Did you hear any inside information that made you change your mind?

    As always, thanks for your input Ron, you're the man.
     
  11. DonDraper

    DonDraper Guru

    Messages:
    1,748
    Likes Received:
    1,307
    Trophy Points:
    113
    Its very clear that FB includes the head count while EB is based on petitioner. The line in FB might just into a million
     
  12. sigler

    sigler Junior Member

    Messages:
    131
    Likes Received:
    15
    Trophy Points:
    18
    If it were so clear Ron wouldn't have said in the past that he thought one couldn't be done without the other. I'd rather wait to see what he has to say.
     
    Last edited: Mar 14, 2015
    HUDA likes this.
  13. s_gan

    s_gan Super Moderator

    Messages:
    5,316
    Likes Received:
    5,438
    Trophy Points:
    113
    I can assure you that our opinions will continue to change as we discuss more ....
     
    sigler likes this.
  14. sigler

    sigler Junior Member

    Messages:
    131
    Likes Received:
    15
    Trophy Points:
    18
    That might be the case, but I'd never say that the difference is "very clear". If there's something Immigration law is not, it's "very clear". And I'm just curious to know if Ron's opinion changed due to our discussions or if he heard something thouh the grapevines.
     
  15. s_gan

    s_gan Super Moderator

    Messages:
    5,316
    Likes Received:
    5,438
    Trophy Points:
    113
    Sec. 203a explicitly counts spouses unmarried sons daughters separately

    Sec 203b talks about EB based immigrants

    Sec203d talks about derivatives who are not eligible for PR in any of the above categories eligible for the same Status immediately
     
  16. Sailor

    Sailor New Member

    Messages:
    60
    Likes Received:
    9
    Trophy Points:
    8
    Hi guys and gals,

    Please read the below and you will understand that White House is gaining more muscle power and GOP is again a loser

    Supreme Court May Have Just Crushed GOP’s Texas Immigration Case
    Posted on: March 10th, 2015


    It didn’t make major headlines, but a key administrative law decision from the US Supreme Court may have made it much harder for Republicans to win the case to stop the President’s deferred action programs. That’s probably because the case wasn’t about immigration law. Dan Kowalski sums it up:

    Judge Hanen’s Feb. 16th injunction turns on the Administrative Procedures Act (APA.) Yesterday’s unanimous Supreme Court decision in Perez v. Mtg. Bankers Assoc. could help Judge Hanen and the 5th Circuit answer the question: Did the November 2014 Executive Action memos require APA notice and comment?

    The case basically says that for federal agencies issuing rules interpreting statutes or their own regulations, they don’t need to go through the normal notice and comment process. That’s a big problem for the plaintiffs in Texas v. USA since Judge Hanen cited DHS for failing to go through the notice and comment process in issuing it’s rules interpreting the deferred action regulations.

    The timing is pretty good for the White House as well. Judge Hanen said yesterday he’s going to force the White House to appear in a hearing on March 19th to get answers on why the Administration allowed for three year EAD extensions to be approved for DACA applicants from 2012. Presumably, Judge Hanen will now be on the defensive to justify how his initial ruling can survive the Perez v. Mortgage Bankers Association. I’m guessing that the Administration will seek to have the judge revisit his decision in light of the new state of the law.
     
    Last edited: Mar 14, 2015
  17. rsr_am

    rsr_am New Member

    Messages:
    35
    Likes Received:
    1
    Trophy Points:
    8
  18. sigler

    sigler Junior Member

    Messages:
    131
    Likes Received:
    15
    Trophy Points:
    18
    Yeah, but 203d which in your opinion applies for all EB applicants, could also apply for F3 and F4 aplcants, for example. Spouses and children of married sons and daughter of US Citizens (F3), and spouses and children of siblings of US Citizens (F4) are not eligible for PR in any other category, and thus should be eligible for the same status, in the same way spouses and children of EB applicants.

    203(a)(2) counts spouses, unmarried sons and daughters of PRs only when the PR himself is the petitioner. By your logic, the spouse of an F4 beneficiary would be counted towards the F2A numerical limit, which does NOT happen. That person is counted towards the F4 limit. So, to me, both EB and FB go by the same rules when counting derivatives.

    I would love to hear what made Ron change his mind though.
     
  19. s_gan

    s_gan Super Moderator

    Messages:
    5,316
    Likes Received:
    5,438
    Trophy Points:
    113
  20. s_gan

    s_gan Super Moderator

    Messages:
    5,316
    Likes Received:
    5,438
    Trophy Points:
    113
    May be they are the same as you say. Here is what I found out.

    A U.S. citizen (USC) may petition for his/her foreign national married son or daughter to qualify for the "F3" preference category. Such F3 beneficiaries are not considered immediate relatives because Congress has determined that if such sons and daughters have married they are not dependent on their parent(s).

    A U.S. citizen may petition for a foreign national sibling of any age. This family preference is known as the F4 family preference. Although there is no minimum age requirement for a foreign national sibling, the U.S. citizen (USC) petitioner must be at least 21 years old. If the USC wishes to petition for more than one sibling, separate petitions must be submitted. A Legal Permanent Resident (LPR) may not petition for his/her sibling because there is no such category. In order to successfully bring sibling(s) to the U.S., the USC petitioner and his/her sibling beneficiary must have at least one parent in common in order to qualify.
     

Share This Page