How To Downgrade From EB-2 To EB-3?
The Department of State released the October 2020 visa bulletin in late September. To be noted, the filing date of EB-3 for foreign workers from Mainland China and India has advanced significantly. As a result, many people are wondering if they can downgrade their approved EB-2 petitions to EB-3. Before we discuss more about the I-140 downgrade petition, it is necessary to learn how to read the visa bulletins first.
There are two charts in the visa bulletin. Chart A posts the final action dates for petitions, while Chart B posts the dates for filing of petitions. Please see the following two charts for October 2020 as examples:
You may wonder what is the difference between the two charts, and why the dates listed are not the same. In brief, Chart B tells you when you can file your I-485 adjustment of status application if you are present in the United States; Chart A determines when you can receive your green card or apply for an immigrant visa abroad. Therefore, for foreign workers who are present in the United States, even if your priority date is current under Chart B and you have filed your I-485 application in a timely manner, you may still have to wait for a long time before obtaining your green card, as your priority date is not current under Chart A.
How to know if the priority date is “current”?
The priority date is the date when your PERM certification is filed. You may also find the priority date on the top of your I-140 receipt and approval notice. If your priority date is later than the date on Chart B (date for filing), it means you can file the I-485 adjustment of status application.
***Please note that you should refer to the visa bulletin for the month when your I-140 downgrade petition is filed, and the subsequent updates of the visa bulletin will not affect the filed application.
What is an EB-2 to EB-3 downgrade?
In most of the time, EB-2 priority date moves ahead of EB-3, as EB-3 is a lower preference category. However, sometimes the priority date of EB-3 moves ahead of EB-2, based on the allocation trends of employment-based green card petitions. When it happens, foreign workers with an EB-2 priority date may want to transfer his petition to EB-3 category, as his priority date could be current under EB-3.
How to file an EB-2 to EB-3 downgrade petition?
In order to downgrade from EB-2 to EB-3, your employer needs to file a new I-140 petition for you. Luckily, a new PERM certification is not required as long as there is no material change of the job opportunity.
Preparing a downgrade petition is basically the same as filing an initial I-140 petition. Nevertheless, as the original PERM certification has already been submitted to USCIS, the downgrade petition is not eligible for premium processing. There is one exception, if the downgrade petition will be filed with the same USCIS Service Center, your premium processing request may be accepted. However, your and your dependents’ I-485 applications can be filed with the I-140 downgrade petition concurrently, as long as your priority date is current under EB-3 category.
Is a downgrade petition necessary?
As discussed above, you will not receive your green card until your priority date is current under Chart A (final action date). You may wonder whether it is necessary to file a downgrade petition. The answer is YES. Although you will not be able get a green card, you will be entitled to some immigration benefits in advance. As the priority date under Chart B (date for filing) becomes current, you may file your I-485 application, together with I-765 (Employment Authorization) and I-131 (Travel Document) applications, which allows you and your dependents (spouse and children under 21) to work in the United States and travel internationally.
***Tips: most immigration attorneys would highly recommend you to maintain your nonimmigrant visa status such as H-1B or L-1 when your I-485 application is pending, though you can work using an EAD card and travel using an advance parole.
Whether I should choose EB-2 or EB-3?
Many foriegn workers who qualify for both EB-2 and EB-3 may get confused about the selection of green card processes. It seems like chasing a shorter line at the supermarket, but picking the wrong line for the green card process will cost you more than just ten minutes’ waiting… However, the visa bulletin changes every month, and it is even harder to predict the trends in the following years. If you don’t know how to choose, file the petition under EB-2 category if you can, as EB-2 moves ahead of EB-3 in general, and you can still resort to the I-140 downgrade petition if EB-3 moves faster.
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