Section 202(a)(5) of the Immigration and Nationality Act provides that if total demand will be insufficient to use all available numbers in a particular Employment preference category in a calendar quarter, then the unused numbers may be made available without regard to the annual “per-country” limit.
The condition is "total demand will be insufficient to use all available numbers in a particular Employment preference category in a calendar quarter"
The premise can not be true since there is a cut-off date for China EB2. By moving forward the cut-off date, the demand will use use all available numbers. DOS should move forward the cut-off date to allow China EB2 visa usage at the limit. DOS must prove that the visa number of China EB2 was already used to the limit under the current cut-off date. Otherwise, it will be against the INS ACT.