EB-2 to EB-3 India Downgrading to Benefit from Earlier Priority Date – How and When to Do It? (Updated)

For many years, it has been a true fact of life that an Indian-born applicant can obtain a green card faster under the higher EB-2 preference category (requiring master’s degree or bachelor’s degree and five years of experience) compared to the EB-3 preference category (requiring bachelor’s degree).  While we expect this to continue to be the case, we are observing and expecting a possible change in this trend, at least temporarily, with the cutoff dates for EB-3 India advancing and becoming more favorable than the EB-2 India cutoff dates and creating EB-3 India downgrade opportunities for some (but not all).

October 2020 Visa Bulletin Major Cutoff Date Advancement

The October 2020 Visa Bulletin and the fact that USCIS has agreed to use the “Dates for Filing” for purposes of I-485 filings during the month of October means that there are potentially thousands of EB-2 India applicants who may be able take advantage of the opportunity to downgrade with the primary goal of filing I-485.

EB-2 India applicants with a priority date between May 15, 2011 and January 1, 2015, would be able to downgrade to EB-3 and file for I-485.

Why is EB-3 India Advancing Faster than EB-2 India?

Our five-to-ten year historic average calculations (based on our Visa Bulletin Predictor Tool) indicate that an EB-2 India priority date becomes current in about 10-11 years while it takes 12-13 years for a priority date to become under EB-3 India (this excludes sharp fluctuations and Filing Date v. Final Action date swings).

As a result of this slow historic forward movement in EB-3 India, over the last several years many initial EB-3 applicants have been able to “upgrade” their case to EB-2 and, as a result, have now joined the EB-2 waiting line with a much earlier priority date.   At the same time, new green card candidates who are eligible for EB-2 have been insisting on having their applications processed under EB-2 in cases this is possible.  The overall result is significantly higher demand in EB-2 India and “migration” from EB-3 to EB-2 India.   As a consequence, the EB-2 India category has been and is expected to continue to be advancing very slowly over the coming months. At the same time the EB-3 India category has not seen the demand normally expected and this is causing the Department of State to advance EB-3 India more aggressively in order to use the available visa numbers.

Similarity to Recent EB-2/EB-3 China Cutoff Date “Flip”

A similar phenomenon occurred in 2018 with China where the EB-3 cutoff date was advancing and ultimately became more favorable than EB-2 for a period of time and this allowed many China applicants to “downgrade” their petition from EB-2 to EB-3 and file their I-485 adjustment of status application.

At that time we cautioned that this is a limited opportunity as we expect EB-3 would not be more advantageous than EB-2 for a very long period of time because the long-term historic average still favors the higher EB-2 preference category.  What happened for EB-3 China was that the cutoff date under EB-3 was more advanced than EB-2 for a while until a sufficient number of applicants filed or downgraded under EB-3 causing the demand for EB-2 and EB-3 to balance out.  We believe a similar scenario is likely for India.

Why Should Someone Consider Downgrading from EB-2 to EB-3?

What we learned from our recent China cutoff date movement experience is that downgrading to EB-3 would mainly result in the ability to file I-485 adjustment of status.  This has many benefits, including getting 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.  Ultimately, however, since the long-term wait time for EB-3 India is longer than that for EB-2, we expect that it may ultimately take longer to get the green card approved unless there is a subsequent future upgrade of the process to EB-2.

We also caution that as many EB-2 India applicants are downgrading, the EB-3 India category will see much more demand which, in turn, will cause EB-3 India to further slow down while EB-2 India to possibly advance faster.

Bottom line, the main reason and benefit for most India nationals to downgrade from EB-2 to EB-3 is to be able to file I-485 and obtain independent EAD and AP for themselves and family members.  A very limited number of applicants (especially those who act faster, are better organized, reside in an area where I-485 interviews are scheduled faster, and who have more advanced priority dates) may expect faster I-485 approval under EB-3.   However, those who downgrade to EB-3 India would possibly have to wait longer for their actual green card approval compared to EB-2.

How Exactly Does the EB-2 to EB-3 Downgrade Work?

In our experience, most if not all, 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 situation 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 (and by now, likely expired) PERM Labor Certification if the same Labor Certification has been used in support of an I-140 during its initial 180-day validity term (which should be the case if the earlier EB-2 I-140 was approved).  This way the same employer would be able to file a new I-140 petition, under the EB-3 category, by relying on the previously-used PERM Labor Certification and without having to do a new PERM Labor Certification.

Furthermore, normally, USCIS does not allow premium processing where the I-140 petition is being filed without an “original” (blue paper) PERM Labor Certification; however, there is a limited exception which would allow 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.

Since the main goal of the EB-3 downgrade is to be able to file I-485 adjustment of status and since we do not know how long the favorable cutoff dates in the Visa Bulletin will last, in most cases we would likely recommend filing for both I-140 EB-3 downgrade and I-485 concurrently.

What Are the Risks and Downsides?

The EB-3 downgrade process requires the employer to submit another I-140 petition with its associated fees.  We should also caution that we have seen 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.    To avoid this risk, as noted above, we recommend filing the I-140 downgrade and I-485 applications concurrently.

We have seen inconsistent USCIS treatment of premium processing requests for I-140 petitions where we are asking the use of previously-submitted original PERM and in some instances USCIS has rejected the entire I-140 filing.    To minimize this risk it may be prudent to file the I-140 EB-3 downgrade with regular processing (again, with the I-485 adjustment of status) and then, once receipt notices are issued in few weeks, to then attempt to upgrade the pending I-140 to premium processing.

Going through an EB-3 downgrade process does not automatically invalidate the prior EB-2 petition so in the event the 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 remains unaffected.

Employers should also very carefully analyze if there are any significant issues with the PERM – at the time the initial EB-2 I-140 was filed and subsequently.   Specifically,  making sure that the prior I-140 was properly filed and approved is key – the worst result would be USCIS finding a reason to invalidate the prior EB-2 I-140 (for example, due to mistaken approval, missing documents, etc.).   Also, employers should be able to demonstrate ability to pay the PERM offered wage for the entire period going back to the priority date – for an EB-3 I-140 downgrade this means several years of tax returns, financials and pay records will have to be carefully analyzed and prepared.

What Are the Key Factors for Success?

We define success as the ability to downgrade an EB-2 petition to EB-3 and be able to file I-485 adjustment of status.   With this in mind, in our experience, the key factors to success are:

• Act early with a good priority date and downgrade analysis – you have to make sure the priority date has a chance to be current when downgraded and you must be among the first “wave” of downgraders;
• Obtain employer support and commitment for prompt action and filings – including reviewing the PERM, prior EB-2 I-140 and financial situation over the prior years;
• Use attorney who understands the process very well, including navigating nuanced USCIS rules for Labor Certification reuse and premium processing without original Labor Certification – without aiming to offend anyone, unfortunately, we have seen USCIS officers or attorneys unaware of rules and procedures described generally in this article which are essential to increasing the chances for success;
• Be flexible, proactive, and ready to complete tasks and processes quickly (such as getting I-485 documents completed and filed quickly).

Webinar Discussion

Our office has been very active in helping individuals and employers initiate the process during what is expected to be a limited window of opportunity and we would like offer a webinar session where attorneys of our firm discuss the EB-3 downgrade process .

Frequently Asked Questions

Can My Employer Use a Different Attorney for the EB-3 Downgrade?

Yes, an 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.  If not already available, it would be helpful to have a full copy of the EB-2 I-140 petition filing.

What is the Cost for the EB-3 Downgrade Process?

As described in this article, for most, the actual 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.   Please contact us for a flat fee quote for the process.

What Documents Are Required for the EB-3 I-140 Downgrade Petition?

It is very likely that most of the key documents have already been prepared and used in the earlier EB-2 petition filing.   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) and possibly a limited set of updated employment verification letters.

How Long Does the EB-3 Downgrade Process Take?

As a reminder, we recommend filing the I-140 EB-3 downgrade together with the I-485.   The actual I-140 preparation can be a few days once a case is initiated and needed documents provided.   The I-485 preparation, in our experience, takes slightly longer.   Overall, we would budget at least a week, possibly two, to prepare and file an I-140 EB-3 downgrade and I-485 application.

Clarification (9/27/2020):  We recommend using premium processing ONLY after the initial I-140 EB-3 downgrade and I-485 application have been filed and issued receipts.

Would EB-3 Downgrade Cancel My EB-2 Petition?

The filing a new EB-3 petition normally does not automatically invalidate the existing EB-2 I-140 petition.  However, when the EB-3 I-140 petition is approved, USCIS would likely consider the case to be based on EB-3 based on (what we expect to be) a more advanced cutoff date under EB-3.

Can I Upgrade My Pending I-485 to EB-2 In the Future?

Generally, yes, but most likely it will have to be based on a different PERM/I-140 petition under EB-2.   In the event the EB-2 Final Action dates become more favorable than the downgraded EB-3 petition (which is very likely at some point in the future) it may be possible to “link” the pending I-485 to a different EB-2 I-140 petition with a current priority date.

I Have Pending I-485 – Would I Benefit from an EB-3 Downgrade?

The biggest benefit of EB-2 to EB-3 India downgrading is to EB-2 India applicants who do not have a pending I-485 application.   After all, as we discussed above in this article, the main goal for most is to be able to file I-485 application (with its benefits).

However, a certain set of applicants who have a pending I-485 may also benefit from EB-3 downgrading if they are able to do so promptly and then ”interfile” (or link) their pending I-485 application to the newly-approved EB-3 I-140 which must also have a current priority under FINAL ACTION date under EB-3.  This process, if done correctly and timely, may lead to faster I-485 approval under the current EB-3 category.

Also, some applicants who have a pending I-485 may benefit from downgrading if they need to get a current priority date in order to add a family member (spouse or children under 21) to the process and file I-485 for derivative beneficiaries.

Conclusion

Our office stands ready to assist in the EB-2 to EB-3 downgrade process and allow Indian nationals to take advantage of what we expect to be a significant and short-lived opportunity.  Not everyone will be able (or should) to downgrade, but our office will be happy to analyze each case’s specifics and provide some suggestions.  We offer free pre-hire case analysis, flat fees case engagement and second-opinion phone consultations.

Please do not hesitate to contact us if we can help analyze your situation and help with the EB-3 downgrade process or if we can help in any way.