Downgrading from EB-2 to EB-3 to Benefit from Earlier Priority Date

The Department of State released the October 2020 Visa Bulletin (first for Fiscal Year 2021) and has brought with it some good news! With regards to Employment-Based immigrant visas, the October Bulletin provides projections through January 2021. The Department predicts the following potential monthly cut-off date movements:

  • EB-1: Remain current for all countries except India and China. Rapid forward movement for India and China.
  • EB-2: Remain current for all countries except India and China. Rapid forward movement for India and China.
  • EB-3 Professionals and Skilled Workers: Remain current for all countries except India and China. Rapid forward movement for India and China.
  • EB-5: Remain current for all countries except China and Vietnam. No forward movement for China and limited forward movement for Vietnam.

Below is a summary of the cut-off dates, specifically for Employment-Based Second Category (EB-2) and Employment-Based Third Category (EB-3)

Employment-Based, Second Preference (EB-2) Category
The EB-2 category remains current for all countries of chargeability except India and China. EB-2 India moves up to September 1, 2009, and has a May 15, 2011 cutoff date on the Date of Filing chart. EB-2 China advances to March 1, 2016, while its cutoff date on the Date of Filing chart is set at October 1, 2016.

Employment-Based, Third Preference (EB-3) Category
The cutoff date for EB-3 India moves forward to January 15, 2010. The good news is that the Date of Filing chart provides a January 1, 2015 cutoff date!

EB-3 China’s cutoff date is set at July 1, 2017, with a June 1, 2018 date on the Date of Filing chart. EB-3 is current for all other countries of chargeability.

EB-3 Other Workers
With the exception of China, the cutoff dates for EB-3 other workers are the same for each country as its respective EB-3 cutoff dates. For China, the cutoff date for EB-3 other workers progresses to December 1, 2008.

Downgrading from EB-2 to EB-3
Downgrading to EB-3 will result in the ability to file I-485 adjustment of status. This has many benefits but the main reason and benefit for most Indian nationals to downgrade from EB-2 to EB-3 is to be able to file I-485 and obtain independent work (EAD) and travel (advance parole) permits (for family members too) and the ability to port the I-485 green card process to a new employer under AC21 after six months.

Process to Downgrading from EB-2 to EB-3
In our experience, if the PERM Labor Certifications are filed by the same employer and for the same position, the EB-2 petition can be used to support an EB-3 petition. If that is the case, then the downgrade process involves the submission of a new I-140 petition filing with USCIS using the prior PERM Labor Certification.

USCIS specifically allows the use of a prior (expired) PERM Labor Certification if the same Labor Certification has been used in support of an I-140 during its initial 180-day validity. This way the same employer can file a new I-140 petition, under the EB-3 category, by relying on the previously submitted PERM Labor Certification and without having to do a new PERM Labor Certification.

USCIS does not allow premium processing where the I-140 petition is being filed without an “original” PERM Labor Certification; however, there is an exception to requesting premium processing for I-140s filed without an original PERM Labor Certification if the new I-140 is being filed with the same service center as the prior I-140.

When the new EB-3 I-140 petition is approved and the EB-3 priority date is current, the applicant can then file a Form I-485, Application to Adjust States, together with the companion EAD work permit and advance parole travel applications.

Downgrading to EB-3 does not automatically invalidate the prior EB-2 petition making it possible to go back to the EB-2 petition if that category ends up being current first. An approved EB-2 I-140 remains valid unless an employer withdraws it, so there is no need to file again.

Murray Osorio is ready to assist in the EB-2 to EB-3 downgrade process and allow foreign nationals to take advantage of this opportunity. Our office is able and willing to analyze each case and provide suggestions on whether a downgrade is an appropriate strategy.

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