CIS OMB response


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I had contacted CIS Ombudsman 2 weeks back regarding my pending 485 Application (PD Apr 2004 - ported from EB3, EB2 approved in Feb 2012)

Here's the response

Thank you for contacting the CIS Ombudsman’s Office regarding your case and your spouse’s case pending before USCIS. The Ombudsman's Office has been informed that the fiscal year 2012's statutory annual allotment of EB-2 immigrant visas for nationals of China and India has been essentially exhausted. USCIS cannot complete the processing of applications to adjust status to lawful permanent residence until the new fiscal year begins on October 1, 2012.

Based on these circumstances, your case inquiry is being closed at this time. USCIS will resume processing of affected EB-2 China and India cases in October 2012. Please allow USCIS until November 15, 2012 to resume and complete your case. If your case is not finalized by that date, please contact the Ombudsman's Office and this inquiry will be reopened. Only requests to reactivate an inquiry due to definitive age out issues will be accepted prior to November 15.

I apologize for these circumstances and encourage you to inquire again after November 2012 if your applications have not received a decision. Please use the reference number CISOMB ###### when communicating with our office.

So there it is!

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This does not make any sense.My case is similar.EB3 applied in Jul2007 with priority date as April 2007.Converted to EB2 in August 2011. And it took five months for the USCIS to dust off my application to put an RFE for employment & BC by Feb2012 and sat on it again. Meanwhile they approved applications with PD's as late as 2009's and now they say they had exhausted all the visa numbers. Life is not fair as usual....

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I would send another request stating that according to the visa biulletin (included) your PD is current, and thus visas are not exhausted - at least, not for you. If they were, there would be a letter U in your category. Bascially, you should tell them you don't believe them, and they need to do a better job. Or file a Writ of Mandamus lawsuit.

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I sent them a follow up

I am slightly confused because as per the Visa Dates availability (by Department of State), for May 2012, the cut off date for priority date processing has been listed as Aug 15, 2007. Given that the priority date of my application is Apr, 2004, it seems to suggest that Visa number ought to be available for my application. Kindly let me know if I am misinterpreting anything here. Your insight and clarification would be of immense help.

And I got a response

Unfortunately, this policy is outside of our control. We do not have authority to request visa numbers and therefore, must abide with USCIS’ policy.

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If the visas are truly exhausted, then they should put U=unavailble in these categories. They either don't want to do it because they are trying to save their behinds, or the visa ARE available. It also impact people who have to extend their EADs (2 years va 1) and H1s (3 years vs 1). This is not right, and against every policy. If you screem bloody murder loud enough they might give you the green card just to shut you up.

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@Belle - you make a logical point. I tried reaching out to USCIS and DoS; each one is pointing me to the other! USCIS is saying "I don't have anything to do with Visa Numbers - contact DoS"; DoS is saying, "Oh, you have a question to do with GC processing, call USICS!"

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The visas weren't exhausted when the VB was published. And after the July 2007 situation, they are not going to change the VB mid-month. I expect the next VB to specify U for these categories.

From post on other forums, The State Department has announced to AILA that there are no visa numbers available in these categories. They are not issuing visa numbers in these categories to USCIS, no matter what.

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Quoted from another forum:

Cite as "AILA InfoNet Doc. No. 12042360 (posted Apr. 23, 2012)"

AILA has confirmed with the State Department that the annual limit in the EB-2 category for China-mainland born and India has been reached. The State Department notified USCIS on April 11, 2012, that no further visas for those categories would be authorized. This is the “additional corrective action” that was forecast as a possibility in Section D of the May 2012 Visa Bulletin (AILA Doc. No. 12040652). USCIS will continue to accept adjustment applications based upon cut-off dates published in the April and May Visa Bulletins. However, requests from USCIS service centers and field offices for visas in the EB-2 category aliens chargeable to China-mainland born or India will be retained by DOS for authorization in FY2013, beginning on October 1, 2012.

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If the visas are truly exhausted, then they should put U=unavailble in these categories. They either don't want to do it because they are trying to save their behinds, or the visa ARE available. It also impact people who have to extend their EADs (2 years va 1) and H1s (3 years vs 1). This is not right, and against every policy. If you screem bloody murder loud enough they might give you the green card just to shut you up.

I am sure Belle is joking :)

You will not get green card no matter what you do. Visas are not available, period. As it seems visa distribution is an estimated process and DOS have run out of visas earlier than expected. So there is nothing you can do unfortunately.

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Well, the onus is on the USCIS in this case. They can't just say - there are no visa numbers. Not according to the bulletin. It is their responsibility to work with the DOS on having the right numbers in the bulletin, not yours. So, while you are current, you can file for writ of mandamus against the USCIS, and expect them to make a decision.

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I am sure Belle is joking :)

You will not get green card no matter what you do. Visas are not available, period. As it seems visa distribution is an estimated process and DOS have run out of visas earlier than expected. So there is nothing you can do unfortunately.

No, I am not. If visas were truly unavailble, then there would be U instead of cut off dates in all categories. So, the visas are availble. The USCIS may not want to give those visas to current India/China applicants, but sorry USCIS, your "want" does not count here. I say, go rip them a new one. File a Mandamus lawsuit. They are obviously not telling us something - and it's their job to tell us, officially, through the bulletin. If not - green card, please.

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@Belle---

I found an article on Writ of Mandamus on the following link : http://www.murthy.com/news/n_mssman.html

"Availability of Visa Number Required for I-485 Approval

©MurthyDotCom

It is necessary to have an available, or “current,” visa number in order to obtain approval of an I-485 application.

The writ of mandamus is not appropriate for the many I-485 applications that are delayed, often for years, due to

the lack of available visa numbers.

"

This takes us back to square one...when dates are current for prior to aug 2007 but no visa available...hence no writ of mandamus or i think if we file one on USCIS they might use this excuse to escape..

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Well, the onus is on the USCIS in this case. They can't just say - there are no visa numbers. Not according to the bulletin. It is their responsibility to work with the DOS on having the right numbers in the bulletin, not yours. So, while you are current, you can file for writ of mandamus against the USCIS, and expect them to make a decision.

DOS is not giving any more visa numbers for these categories to USCIS. Period.

And that is well-known by now. See the latest Murthy Bulletin.

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Well, the onus is on the USCIS in this case. They can't just say - there are no visa numbers. Not according to the bulletin. It is their responsibility to work with the DOS on having the right numbers in the bulletin, not yours. So, while you are current, you can file for writ of mandamus against the USCIS, and expect them to make a decision.

The PD being current does not mean a guaranteed approval. A WOM would just be a waste of time and money.

Fuggetaboutit. DOS is not giving any more visa numbers to USCIS, because there aren't any left in these categories.

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This has all been explained in Newsflashes on www.Murthy.com and in the Murthy Bulletin. The numbers are gone. The numbers were pretty much all gone as of March 26th, but they didn't confirm that they were completely 100% gone until more recently. There is an article on this in today's MurthyBulletin.

It doesn't matter what the cut off date is in the May Visa Bulletin---other than for anyone who is still first filing an I-485 in EB3 with an older PD. They can file under the May VB.

There is no point in arguing about it with the USCIS or CIS ombudsman's office. The USCIS can not create a visa number out of thin air. There are a certain number of them each year, and the Department of State is supposed to track/allocate them.

No mandamus can be filed unless there is a visa number allowing for immediate approval. The mandamus only forces a decision, not an approval.

Yes, people with later PDs have been approved----particularly those that were able to file for EB2 directly or those who did upgrades earlier. The I-485s are not resorted for adjudication based on priority date.

If the OP wants to address issues with the ombudsman, the better questions would surround why the estimates of supply/demand were so far off that the visa numbers ran out for EB2 1/2 way through the year. The cut off dates are based upon estimates of supply/demand. While part of it is due to particularly fast case processing by the USCIS---which used up numbers earlier than expected. If they had been slower, the numbers would have lasted longer. But, that is not the only factor here. The DOS relies in large part upon data from the USCIS in making projections.

In any event, some of this will potentially become a bit more in date order in October. Older cases should be ready to go for approval as soon as more numbers are available.

Belle, you do realize that Visa Bulletins are published in advance and not modified after the fact. That is why there is no "U." There should be a "U" next month, and so on until October.

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No, I am not. If visas were truly unavailble, then there would be U instead of cut off dates in all categories. So, the visas are availble.

Nope. Visa numbers are not available anymore.

And it is not USCIS, anyway. DOS handles visa numbers. Really, you of all people should know that...

And DOS has stated to AILA that since April 11, it is not giving out visa numbers in the categories anymore.

WOM does not work, since there are no visa numbers available anymore. All immigration lawyers know that by now.

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Allegedly, the USCIS knew about the numbers being depleted in the end of March, however, May bulletin, which was released in April did not show U. Since the USCIS knew that there were few numbers (otherwise, they would not have retroed the dates), they should have been more careful. There are visa numbers in other categories, and it is not clear whether all of them will be used. It is my opinion it makes sense to push for approval, especially, if one's case has been pending for five years. I would at the very least call the representatives.

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it is curious for CP.

People doing the CP would be eligible to get green card if their docs are in order, correct?

Secondly, how can the demand data be so much flawed? We got multiple reports on 485 demand data for eb2 in\chi. The demand prior to 2008 was so low. Was not this the basis for moving the dates so much forward? If they had sudden influx, it did not show up anywhere in the demand data.

Bulletins and websites say it was already anticipated that the dates will severely retrogress. Was surprise to those people who saw the demand data and made their decisions based on that. Was surprise to USCIS also that the numbers depleted so fast. It was a surprise to even the dos that the dates became U so fast.

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