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Visa Recapture

Discussion in 'Visa Modernization' started by s_gan, Mar 31, 2015.

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  1. s_gan

    s_gan Super Moderator

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  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The actual number, if you do the math, should be lower than 226,000 per year, but there is a provision that guarantees that many visas per year. I'll keep looking for it. In the meantime, this is from an August 7, 1999 INS memo concerning subtracting numbers from the quota:

    VI. Immigrant Visa Chargeability of Long-Term Parolees

    Section 603 of IIRAIRA also amended section 201(c) of the INA. Effective October 1, 1998, long-term parolees who do not depart from the United States will be chargeable against the worldwide numerical limitation established for family-sponsored immigrant visas.

    The Service interprets section 603 of the IIRAIRA to provide that, effective October 1, 1998, the worldwide annual limit on family-sponsored preference immigrants will be 480,000, minus: (a) the number of immediate relatives admitted during the previous fiscal year; (b) the number or parolees who do not depart from the United States (other than pursuant to advance parole) within 365 days of being paroled into this country; and (c) the number of long-term parolees who adjust status pursuant to special legislation. In all cases, however, the number computed under section 201(c) of the INA, as amended by section 603 of the IIRAIRA, may not be less than 226,000. See section 201(c)(1)(B)(ii) of the INA. Parolees who adjust status pursuant either to section 201(b)(1) or 201(b)(2) of the INA will not be subtracted from the worldwide annual limit on family-sponsored immigration.

    In calculating this figure, the State Department Visa Office has informed the INS that adjudicating officers need not report individual adjustments of such parolees to the State Department. Instead, the State Department has asked that INS Headquarters provide only an annual written statement to the Visa Office regarding the total number of long-term parolees to be considered in determining the annual family-sponsored limit. In processing adjustment of status cases, INS personnel are reminded to carefully record on Form I-181 the immigration status (for example, parolee, nonimmigrant classification, EWI, etc.) of the applicant at the time the adjustment is granted.
     
  3. s_gan

    s_gan Super Moderator

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    Thanks Ron.

    I think I now understand it better.

    The maximum number of visas that can be issued for a particular year in a particular category is

    Maximum for that category (EB/FB) + Spillover(from EB/FB)

    If this is not the new Maximum then the spillover visas cannot be used. I think the our disagreement is due to the manner in which the word "maximum" is interpreted. I think you are saying that original Maximum should be used for purpose of computing the spillover. However this is not explicitly stated in the law.
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It is more a matter of the minimum. You have to do the math. The minimum guarantee is 226,000 annually. If you actually subtract all of the other numbers from 480,000, in some years you have a negative number. In no case do you have anything approaching 226,000. So, with a minimum guarantee of 226,000, that is used for the annual FB quota.
     
  5. s_gan

    s_gan Super Moderator

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    Agree to disagree :)
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    How do you arrive at a larger number?
     
  7. s_gan

    s_gan Super Moderator

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    I came up with the bigger number after going back and forth between INA sections 201 and 203

    The maximum number (worldwide levels) specified by 203(b) and 203(a) actually point back to INA section 201. INA 201 calculates the maximum number by adding unused number from previous years of FB category to EB and EB category to FB.
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    But did you subtract from the IR numbers. For example, if there are 480,000 FB numbers to start with, but then 500,000 immediate relatives adjust, you have -20,000 FB numbers left. There is a statutory guarantee of 226,000, however, so that is what they use. Assume that all 140,000 EB numbers are unused, you still would have only 130,000 FB numbers.
     
  9. s_gan

    s_gan Super Moderator

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    I did not do that as the unused numbers are added to worldwide levels for that category.

    Moreover my understanding is that 226K is minimum guarantee and I don't see it stated otherwise in INA 201 and 203.

    May be I did not understand it. Don't understand why the law has to be so complicated.
     
    Last edited: Mar 31, 2015
  10. Colworth

    Colworth Member

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    The Family Based Calculation is given in INA 201(c) reproduced in part below:

    (c) Worldwide Level of Family-Sponsored Immigrants. -

    (1) (A) The worldwide level of family-sponsored immigrants under this subsection for a fiscal year is, subject to subparagraph (B), equal to -

    (i) 480,000, minus

    (ii) the sum of the number computed under paragraph (2) and the number computed under paragraph (4), plus

    (iii) the number (if any) computed under paragraph (3).

    (B) (i) For each of fiscal years 1992, 1993, and 1994, 465,000 shall be substituted for 480,000 in subparagraph (A)(i).

    (ii) In no case shall the number computed under subparagraph (A) be less than 226,000.


    The number computed under paragraph (2) refers to the numbers of approvals for Immediate Relatives and children born to a LPR during a temporary visit abroad from the previous FY. Paragraph (4) refers to parolees from the 2nd preceding FY.

    The number computed under paragraph (3) refers to unused Employment Based visas from the previous FY.

    The number of Immediate Relative approvals means the initial 480k now always drops below the minimum 226k amount, even if spare EB numbers are available.

    For example, in FY2013, the DHS Yearbook reported 439.5k IR visa use, so the FY2014 FB calculation dropped to 480k less 439.5k = ~40.5k. FB received no unused EB visas from FY2013 leaving the total FB calculation at around 41k. Clearly that is below the minimum number of 226k, so the FB limit for FY2014 was 226k.

    DOS used to publish the actual calculation as part of the Visa Statistics. The last one from FY2007 can be found here: http://travel.state.gov/content/dam/visas/Statistics/FY07_AppB.pdf (reproduced in part below)


    Calculation of FY−2007 Family-Sponsored Preference Limitation:

    Immediate relative visa issuances during FY−2006: ------------------------ 224,187
    (minus net total of "recaptured" FY−2006 IR visas: --------------------------- (10)
    Immediate relative adjustments of status by USCIS: --------------------- + 357,127
    Children admitted after birth to immediate relative visa holders: ----------- + 11
    Children admitted after birth abroad to lawful permanent residents: -------- + 623

    Immediate Relative etc. Total: ------------------------------------------- 581,938

    FY−2007 Worldwide Family-Sponsored Level figure: ------------------------- 480,000
    minus IR etc. total calculated above: ----------------------------------- (581,938)
    minus aliens paroled into the United States under Section
    212(d)(5) in the second preceding fiscal year (FY−2005): ----------------- (10,000)
    plus unused FY−2006 employment pref. numbers: --------------------------- + 10,326


    Total -------------------------------------------------------------------------- 0


    Since under the law the family-sponsored preference limitation for any fiscal year may not be less than 226,000, the limit for FY−2007 is fixed at: 226,000


    I hope that more clearly explains it.
     
  11. s_gan

    s_gan Super Moderator

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    I was adding unused numbers after setting the minimum to 226K. It appears that the unused numbers have to be added before setting the minimum to 226K.
     
  12. speedracer

    speedracer Guru

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    the recapture just got floated on news blog on huffington post, looks like they are trying to gauge the response .. positive or negative for the action.. it did mention atleast 200K in visa numbers..
     
  13. speedracer

    speedracer Guru

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  14. NIW_limbo

    NIW_limbo Member

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    Ron, considering that April 2015 visa bulletin goes into effect today, if the DOS/WH decides to recapture they will announce it effective immediately or it should be reflected in subsequent visa bulletins? What are your thoughts on this?
     
  15. Kamakazee

    Kamakazee Super Moderator

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    This article came out on April Fool's day. Does this mean recapture is a fool's errand??? :)
     
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  16. Shane

    Shane Junior Member

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    Don't wanting being pessimistic but I was always under the impression that recapture requires congress approval
     
  17. speedracer

    speedracer Guru

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    just like a treasure hunt for fool's gold... tall tales and nothing real..
     
  18. NIW_limbo

    NIW_limbo Member

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    Things have changed since then…. please read this thread and the posted article, and your impression may change.
     
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Assuming the administration takes some kind of action involving the supply of visas (reinterpretation and/or recapture), my feeling is that the Visa Office would issue an updated Visa Bulletin immediately.
     
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  20. speedracer

    speedracer Guru

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    Ron - as per earlier discussion forum they did recapture visas in AC21, when they did previously, did they open the flood gates at once or did they slowly released the numbers every year? basically would they make everyone current or would they slowly move the dates ahead?
     
    Last edited: Apr 1, 2015
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