If your country of birth is not India or China, you don’t have to think about this as all other countries’ employment-based green cards can be obtained on current dates. For all employment-based preference categories, please use the Final Action Dates chart in the Department of State Visa Bulletin for September 2020, which can be found here.
When to Downgrade from EB-2 to EB-3 category?
- File downgrade if your EB-2 priority date is current in the ‘Final Action Date” Table
- It is better to wait if the EB-2 date is current in the “Date of Filing” Table
- You can get green cards faster in the EB-3 category if your EB-2 priority date is current in EB-3
What are the Steps of Downgrading from EB-2 to EB-3?
- Your current employer with approved I-140 (from EB-2) with a priority date that is current in EB-3
- They can downgrade your case using the same EB-2 PERM, but they have to file a new I140 with the EB3 category
- There is no need to file a new PERM for downgrading from EB-2 to EB-3
- EB-2 PERM can be used for EB-3 downgrade
- You can also file your I-485 application to adjust status concurrently with this new EB-3 I-140
- You need to be careful that the petition still meets the requirements
- For instance, showing the ability to pay since the priority of the underlying labor certification, and having sufficient educational and experience documents
- USCIS will not give deference to prior approvals on these issues
- There is no clear rule how USCIS will proceed on a case by case basis if the EB-2 date becomes current on Final Action prior to EB3 after a downgrade has been filed and approved
For the Same Employer
- PERM Labor Certifications which have been used in support of an EB-2 petition can be used to support an EB-3 petition by the same employer and for the same position
- In this scenario, the downgrade process involves the submission of a new I-140 petition filing with USCIS using the prior PERM Labor Certification
For a Different Employer:
- Your NEW employer X, with approved EB-2 I-140 from Employer Y, with a priority date that is current in EB-3, can downgrade your case with a new EB-3 PERM and file a new I140 with the EB-3 category
- You can also file your I-485 application to adjust status concurrently with this new EB-3 I-140.
Will My Previous EB-2 Petition be Null and Void if I Downgrade from EB-2 to EB-3?
- Going through an EB-3 downgrade process does not automatically invalidate the prior EB-2
- If EB-3 downgrade is not successful (such as the EB-3 I-140 is denied, for some reason, or withdrawn), as a general matter, the EB-2 petition will remain unaffected
Downside of Downgrading
- The EB-3 downgrade process requires the employer to submit another I-140 petition with its associated fees
- There have been past instances where the newly downgraded EB-3 priority date did not become current and the applicant was ultimately unable to file I-485 immediately after the downgrade took place
What Steps are Necessary to Ensure Success?
- Try to be in the front of the line for downgrading, as the window is often very short
- Conduct a thorough priority date and downgrade analysis, maybe talk to your lawyer to make a final decision
- Let your employer know before and get support and commitment for prompt action and filings
- Use attorney who understands the process very well, including navigating nuanced USCIS rules for Labor Certification reuse and premium processing without original Labor Certification
- Be flexible, proactive, and ready to complete tasks and processes quickly (such as getting I-485 documents completed and filed quickly)
What is the Cost of Downgrading?
- EB-3 downgrade process would involve filing a new I-140 petition
- This means that all of the I-140 expenses would apply, including filing fee, premium processing fee (where applicable) and attorney fee
What Additional Documents are Required for EB-3 I-140 Petition?
- The new petition will need to include a new set of petition forms
- New evidence of the employer’s continuing ability to pay the offered wage (tax returns, audited financial statements or annual report from the employer and pay records such as W-2 and pay stubs from the employee)
- An updated employment verification letters, in certain cases
- It is very likely that you already have most of the key documents prepared and used in the earlier EB-2 petition filing
Can My Employer Use a Different Attorney from the Attorney Who filed my EB-2 Petition?
- Yes, your employer can choose to have a different attorney handle the EB-3 downgrade process from the attorney who may have done the EB-2 petition filing for you
- If not already available, it would be helpful to have a full copy of the EB-2 I-140 petition filing
Premium Processing for EB-3 Downgrade
- You can not file EB-2 to EB-3 downgrade I-140 in premium processing because the original PERM labor certificate won’t be filed with new EB3 I-140
- USCIS does not allow premium processing when there is no original PERM approval attached to the I-140 application
- If your I-140 EB-3 downgrade is filed at the time same service center that earlier approved I-140 was filed, then your application is eligible for PREMIUM processing
- The premium processing time for EB-3 I-140 also does not start immediately. The USCIS will first find PERM and then confirm the premium processing time start date
- Your employer can attach a copy of the original EB-2 PERM with a request that the original be fetched from the previous PERM file
How Long Does the EB-3 Downgrade Process Take?
- Once a case is initiated, the actual document preparation can be as short as a day or two
- If you are not eligible for premium processing, then it might take up to 6 months for I-40 to get approved
We do not recommend downgrading for everyone, but our office will be happy to analyze your case’s specifics and provide some suggestions.