EB2 to EB3 Downgrade for Faster Green Card – India, China

Anil Gupta  19 Mar, 19      334  USA USA News Work in USA - H1B, L Visa

EB2 to EB3 Downgrade India April 2019 Visa Bulletin

EB3 India final action date 22 June, 09 is ahead of EB2 final action date 12 Apr, 09 in Apr 2019 Visa Bulletin!

Apr 2019EB1EB2EB3
Date of Filing 1 Oct 171 Jun 091 Apr 10 
Final Action 22 Feb 1712 Apr 0922 Jun 09

EB3 India Final action data has moved 1 month ahead in Apr bulletin as compared to just 6 days increase in EB2 India.

As of Jan 17, 2019, ‘Date of Filing’ chart is NOT available for use starting Feb 2019 visa bulletin.

People usually start jumping from higher category (EB2) to lower category (EB3) when they see an opportunity to get green card faster in the lower category than their current one. This has happened with China in past and Now India is gearing up for it.

EB2 to EB3 Downgrade Process

Your current employer with approved I-140 (from EB-2) with a priority date that is current in EB-3, can downgrade your case using the same EB2 PERM and file a new I140 with the EB3 category.

There is no need to file a new PERM for downgrading from EB2 to EB3. EB2 PERM can be used.

You can also file your I-485 application to adjust status concurrently with this new EB3 I-140.

EB2 to EB3 Downgrade with Same Employer

In 2018, Assume that you have an approved EB2 i140 India with GC priority date as 25 Dec 2009 (i.e. before 1 Jan 2010). Since, date of filing chart is allowed to be used in Nov 2018 visa bulletin, your current employer can port your i140 to EB3 and file your i485 to get Green card faster.

It is certainly better than waiting for EB2 to get current which may take more than 4-5 years to even reach Dec 2009 date.

EB2 to EB3 Downgrade with Different Employer

Your NEW employer B, with approved EB2 I-140 from Employer A, with a priority date that is current in EB-3, can downgrade your case with a new EB3 PERM and file a new I140 with the EB3 category. You can also file your I-485 application to adjust status concurrently with this new EB3 I-140.

EB2 to EB3 Downgrade Premium Processing

You cannot file EB2 to EB3 downgrade I-140 in premium processing because the original PERM labor certificate won’t be filed with new EB3 i140.

USCIS already has the original EB2 PERM in your EB-2 I-140 file. USCIS does not allow premium processing when there is no original PERM approval attached to i140 application.

Exception: If your i140 EB3 downgrade is filed at the time SAME service center that earlier approved i140 was filed, then your application is eligible for PREMIUM processing.

The premium processing time for EB3 i140 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 EB2 PERM with a request that the original be fetched from the previous PERM file.

How Long Does it take to Downgrade EB2 to EB3

Since, Premium processing is not available, the i140 approval processing will take 6 months (varies with current i140 processing time).

Upgraded EB3 to EB2, Now Downgrade to EB3 again?

You are LUCKY!

If you had approved EB3 i140 earlier with employer A and then upgraded to EB2 with a new employer B. Now, if the employer A still has the EB-3 position and has not withdrawn the approved I-140, you can file your I485 with supplement J signed by the EB-3 employer A without filing a new I-140 and convert to EB3.

Downgrade EB2 to EB3, then Upgrade again to EB2 later?

Example: Your EB2-India priority date is 17 June 2010. Assuming, EB3 moves at faster rate than EB2 India, you downgrade from EB2 to EB3 and file i485 along with 140.

Now, in future EB2 India moves faster than EB3 India and you have approved 140 and EAD from EB3.

Yes, you CAN go back and use previously approved 140 (EB2) to file i485 to get GC faster if both EB2 i140 and EB3 i140 are valid.

Murthy.com has explained this concept of Interfiling or changing the underlying I140 for pending I485 application.

File EB2 to EB3 Downgrade for Future Priority dates?

It is possible that some of you want to downgrade your EB2 to EB3 even though your priority date is still not current in EB3 filing date chart.

Downgrading in advance to be ready to file i485 as you expect EB3 to be current for you in next couple of months is a daring step. It is not really required as you can file both EB3 i140 downgrade and i485 adjustment of status concurrently. You are not out of the game if EB3 becomes current for you.

So, don’t worry.

Indian EB2 vs EB3 – i485 Pending Applications

The GC availability in Indian EB3 seems to have better chance at this time when compared with Indian EB2 based on the July 2018 USCIS pending i485 data.

IndiaEB2EB3
200822741
200910,83151
2010 (Jan – Apr)4,677 (Jan-Apr)0
2011 – 201800

Compare almost 11k EB2 India already waiting for getting GC with EB3’s less than 100 numbers.

This clearly indicates that EB3 is going to take far long jump in the new 2018-19 USCIS GC priority date season as has been indicated by current trend.

EB2 vs EB3 India race to green card
Indian EB2 vs EB3 race to green card

March 2019 Final Action dates

The EB3 Indian Final Action dates are not too far behind EB2 India either. With this speed, EB3 may just win the race by the end of 2018-19 GC season!

 

CategoryEB1EB2EB3
India (Compare with Jan’ 19 dates)1 Dec 16 -> 8 Feb 17(+2 months)1 Apr 09 -> 6 Apr 09 (+6 days)1 Mar 09 -> 22 Apr 09 (+2 months)
China8 Feb 171 Oct 151 Jul 15
Mexico1 Dec 17CC
PHILIPPINES1 Dec 17C1 Aug 17
OTHER1 Dec 17CC



   Read all 334 Q & A

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  1. Manish Saini   19 Mar, 19 at 1:47 pm

    Hi Anil,

    Why there is no pending 485 inventory report after July 2018? Whereas it is supposed to be published every quarter?

    Any clue?


  2. Hi Anil,

    My PD is April 30th,2010. When do you think that the filing date for EB3 will be moving beyond April 1st,2010 in EB3 to apply I485. Any insight? any chance of moving this year? Thanks for you help.


    • I do not see April 30, 2010 getting current for EB3 in current fiscal year ending Sep 2019.


      • HI Anil
        I missed the boat last Jan to file i485. My priority date is Jan 2010. I did not file it as my approval from HR came only on Feb for downgrade process. so I missed the boat. What is the chance that Sep 2019 USCIS would open the Filing date again. Looks like only last year they opened it very first time. They did not open it 2016 and 2017 fiscal year.


        • I think the “Date of Filing” chart will not open again at-least in this fiscal year till Sep 2019.


      • Thanks for your response Anil. Any changes for 2020 FY?


        • That will be known only when we reach fiscal year 2020 and we are able to see the trend at that time.

  3. Arabinda P   15 Mar, 19 at 5:15 pm

    Hi Anil,

    Here is my situation. My PD is Nov 2009. I have an approved EB3 and EB2 (was upgraded after promotion) I140 from employer A. I am with employer B since last 4 years and have an approved EB2 I140. If my PD becomes current under EB3, do I still need to file a new I140 with the EB3 category? I asked this question to my attorney and he said yes. I was hoping I will be able to use my approved I140 EB3 from employer A with supplement J as you mentioned above.
    Both employer A and B are well known MNCs. So I doubt employer A would have pulled my approved I140. Can you please advise?

    Thanks.

    • Anil Gupta   15 Mar, 19 at 7:51 pm

      Filing the i485 with supplement J works if you plan to go back and join Employer A. This supplement J and EB3 i485 should be filed by Employer A and not B.


  4. Hello Anil,

    My EB2-India priority date is 17 June 2010. It seems EB3 is going to move at faster rate than EB2 India. I am still with same employer who filled my original labor and I140 in EB2I.

    Is it possible to file I140 in EB3 (To downgrade) even if my priority date is not current?

    I really appreciate your help.

    Thanks

    • Anil Gupta   15 Mar, 19 at 7:44 pm

      You can file the downgrade from EB2 to EB3 even when your PD date is not current. You will only be able to file EB3 i140 and not i485.


  5. Anil do you know for sure if we have to go through the interview process if we move the case from EB2 to EB3 with already filed 485 in EB2 ( filed in 2012). I was under the impression that it will be just a straight forward request to consider the case in EB3 and shouldn’t not involve Interview ??.

    • Anil Gupta   15 Mar, 19 at 6:13 am

      As per my information, 485 interview is now mandatory for all employment based Green cards.


  6. Hi Anil, My PD is Jun 29, 2009 (EB2 category). I already have my EAD from 2012 / pending I-485. I am with the original employer who sponsored by GC. Reading your earlier responses to others, am I right in assuming that EB2 to EB3 downgrade is a good option for me – given that interfiling can be used to protect against EB2 advancing faster / EB3 retrogressing scenario? I.e., Does the downgrade allow for 2 different I-140 petitions be available for my I-485 to be linked to, therefore improving my chance to expedite GC approval? Or, is this creating unnecessary risks of any kind?

    • Anil Gupta   14 Mar, 19 at 6:41 pm

      I suggest to wait for your EB2 date to get current in EB3 final action and then file both EB3 i140 and i485 concurrently.
      You can do interfiling too later if EB2 moves faster than EB3 but as per my estimate, you should be able to get your date current in next 1-2 months.


      • Thanks Anil. I forgot to mention that in my case, I have made a natural progression to IT Development Manager role (my original PERM was for IT Developer). Will this complicate my ability to downgrade?


        • current Role does not matter. As per the rule, company having a job which has developer role and for that you have applied it and waiting for green card. After getting it you will be working for that role.

          Simple example : You might have a diaper role when you joined with the company 15 years before. Now you are grown up man. But still USCIS wants to see you in diaper role after 15 years once you get green card. In reality , no one going to work on Diaper role again until you are Benjamin.

        • Anil Gupta   15 Mar, 19 at 7:31 pm

          As long as your employer can prove that they still have the same job with same job profile that they filed your i140 for, they can downgrade.
          You will also be required to work in that role after filing i485 and employer should be able to prove it on paper.

        • Anil Yedlapalli   17 Mar, 19 at 6:28 am

          Hi Vijay, I am in same boat as you. Please post the outcome of downgrade., My PD Jan 2010, so it helps too. Thanks!

  7. Satinder Singh   12 Mar, 19 at 9:04 am

    Hi Anil, How should I contact you to seek your professional advice? Please reply.


  8. hi Anil
    My i485 is pending EB3 india Oct 2009. My I140 approved. My company bought by another company and my company name is anymore.
    For my case , do I need to amendment my I140 that is already approved. Also my i485 is pending. Do I really need to amend my I140 to new company?

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