EB2 to EB3 Downgrade Process, Risks (Premium, Cover Letter)

Indian EB2 vs EB3 green card priority date movement. Date of filing chart may be available for use in 2021. File i485, EB2 to EB3 downgrade with approved i140.

Written by AM22Tech Team
  AM22Tech Team    Updated 8 Sep, 21


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 for EB3 downgrade.

Should I downgrade (Check using App)?


Estimate my GC Date >

EB2 to EB3 Downgrade Process

Check if your PERM expired without filing i140 here or not. You can also file your I-485 application to adjust status concurrently with this new EB3 I-140.

Same vs New Employer – EB2 to EB3 Downgrade

EB2 to EB3 Downgrade – If EB2 date is current in EB3

#1 Same Employer

No change in the job position

1. Use EB2 PERM. No new PERM is required.
2. File new EB3 i-140 in premium.
3. File i-485 concurrently with i-140.

#2 Different or Same Employer
Including Amended i-140 after merger/acquisition, amended i-140 after merger/acquisition, Promotion, or job detail change

1. New EB2 or EB3 PERM required with the current employer.
2. File new EB3 i140. Porting GC date from old i140 allowed.
3. File i485 concurrently with i140.
4. Supplement J required.

Immigration Attorney Advice for EB2 to EB3

You can hear immigration Rahul Reddy and Ryan Wilck discuss the EB2 to EB3 downgrade options, risks, and benefits.


Is New PERM Required?

New PERM is not required unless you got promoted or moved out of state and want to file i485 using this new location and job position.

You can go back to work with the old job position at the old job location mentioned in PERM to file i485.

This is a much better option as it saves you from the hassle of filing a new PERM. Go back to the old location, work there for 6 months after getting a Green card, and then you should be good to move on.

Premium Processing for Downgrade

You can file EB2 to EB3 downgrade I-140 in premium processing but allowing it is based on USCIS discretion.

Basically, when you file the downgrade, the original PERM labor certificate won’t be filed with the 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 the i140 application.
  • If your downgrade goes to the same service center as your earlier EB2, then the chances of getting premium accepted are high as the same center has your original PERM.

What Houston based attorney Rahul Reddy suggests to be on the safe side:

  1. File EB3 i-140, i-485 along with EB-2 PERM in regular processing.
  2. Wait for the receipt number for EB3 i-140.
  3. Once you get the receipt number, upgrade to i-140 premium processing.
  4. This helps avoid the situation in which USCIS might return all applications if they are not ready to allow i-140 premium processing.

EB3 Downgrade premium processing time:

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.

i140 Processing Time

How Long Does it take to downgrade EB2 to EB3? The EB3 downgrade i140 approval processing is taking 6+ months.

Check current i140 processing time.

Benefits of EB2 to EB3 Downgrade

As per my opinion and the Indians I spoke to, consider this EB3 date of filing chart as an insurance policy.



Just think of applying this downgrade as paying a premium for what I call ‘visa insurance’!

Most employers will ask you to pay for it and that is perfectly fine. My personal suggestion is to just pay it.

If you are currently in the EB2 queue and decide to file the EB3 downgrade and then i-485, you may get these additional benefits as a backup to your H-1B visa:

  1. i-485 EAD – an open work permit. You can use it to keep staying in the US if you lose your H1B job in case of lay off. No need to worry about the 60 day grace period.
  2. H4 Spouse can work: H4 dependent spouse can work using i-485 EAD.
  3. H1B Visa Stamping Voes: You can avoid visa stamping at the US embassy as and when you travel by using your Advance parole to enter the USA instead of an H1B visa. You can then convert back to H1B (if you want) within the US.
  4. IRS Child Tax Credit – Your H4 or L2 dependent child can get a child tax credit up to $2000.

Risks of EB2 to EB3 Downgrade

The only primary benefit of doing an EB2 to EB3 downgrade is to get the status of pending i-485. This pending i-485 status gives you access to i-485 EAD and ‘Advance parole’.

As I said above, consider this only as an insurance policy as you may never use the EAD and AP as long as you want to keep your options open for going back to the EB2 queue.

What most attorneys suggest is that you downgrade and then keep both EB2 and EB3 i140 in hand.

Our suggestion is to not use EB3 EAD or AP unless it is absolutely required.

#1 EB3 i140 denial with ‘ability to pay as the reason

It is possible that USCIS denies your EB2 to EB3 i140 for the reason that the employer does not have the ability to pay the wages. This is a serious matter and has the potential to put your EB2 i140 in danger too.

USCIS does not usually revoke the EB2 i140 if the EB3 downgrade is denied but if the USCIS officer wants, they can issue a NOIR (Notice of intent to Revoke).



You should carefully plan and talk to your employer before filing the downgrade.

Why Employers Hesitate to File Downgrade?

Generally, employers who do not agree to EB2 to EB3 downgrade easily worry for this very reason.

Employees may not realize it but it does add a huge financial burden and a legal requirement to keep the i140 commitment in front of USCIS. This is not a simple job and hence most employers are hesitant unless they have a big set-up and enough money to support all i140s (they have applied in past and will apply in the future).

It will be a task to convince them to file both EB2 and EB3 at the same time unless they already understand and have evaluated all pros and cons from their own balance sheet point of view.

#2 Using EAD Means Abandoning H1B/L Status

Once you start using EB3 EAD after the downgrade, you lose your H1B/L status as your I-9 form now shows the work authorization as EAD.

#3 Going Back to H1B/L status After Using EAD

Once you use EAD/AP, then going back to the H1B/L status is not easy.

  • You cannot file a simple change of status from i485 EAD to H1B while staying in the US.
  • You would need to go out of the US and apply for H1B/L visa at embassy. There will be many questions raised with respect to your ‘intent’ and there are high chances of denial.

#4 Interfile EB2 i140 if EB2 gets current earlier than EB3

  • To file the i-485 in EB2 if the date gets current earlier than EB3, you will not be able to prove any underlying status which actually means any H1B or L visa status if you have already started using EAD.
  • If you are still on H1B and the EB2 date gets current, you can use the concept of ‘interfiling’ to replace the EB3 i140 with EB2 i140 and get i-485 approval.

#5 H4 child Age out protection

The CSPA law provides H4 child age-out protection if i-485 has been filed before the age of 21.

This is currently allowed only if your i-485 has been filed using the ‘Final Action‘ dates as explained by attorney Cyrus Mehta.

If you are filing i-485 using the DOF chart now, you may not be eligible for CSPA. It is possible that USCIS changes the rules to include the DOF chart in the future but there is no guarantee.

Check your child’s age protection if you file EB2 to EB3 downgrade using an app here.

Cover Letter – EB2 to EB3 Downgrade, EB3 to EB2 Upgrade

You can create the cover letter to send with your downgrade or upgrade application easily with our app. The app also allows you to add the receipt and A number bar code to your cover letter.

The bar codes help USCIS easily scan your previous i140 receipt or A number to quickly locate your Green card file. The idea is to make it easier for USCIS officers and mailroom executives to find your case and reduce their workload.

#Step 1

Visit the EB2-EB3 Cover letter app here.

You will need your approved i140 receipt number, approval date, A number, and PERM number to create this letter.



#Step 2

Enter your current i140 details which should be in an approved status to generate this letter. The app will not let you generate the letter if the previous i140 is still pending or has received RFE or it was denied. There is no use in sending this letter if the i140 was not approved earlier.

The letter adds tried and tested language for requesting these with your downgrade or upgrade:

  • Request the porting of priority date to the new EB2 or EB3 i140.
  • Reuse the original PERM sent with the earlier i140 appilcation.

Sample Bar Code on Cover Letter

EB2 EB3 cover letter for downgrade or Upgrade with Barcode
EB2 EB3 cover letter for downgrade or Upgrade with Barcode

#Step 3

Pay for the options that you have selected to be printed on the form and then generate files. Your files will be sent to you by email securely.

Print on Employer Letterhead (Recommended)

If possible, you should print this letter on the employer’s official letterhead. Note that the employer means the company who is sponsoring your i140 and not the end client.

You can easily print this cover letter on employer letterhead. There is enough space left on the top of the page to add the employer logo.

FAQ

I Upgraded EB3 to EB2, Can I Downgrade to EB3 again?

If you had approved EB3 i140 earlier with employer A and then upgraded to EB2 with a new employer B.

Now, if 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.

Can I file EB2 to EB3 downgrade myself if the employer is not ready to file?

You cannot file EB2 to EB3 downgrade yourself. The US employer needs to provide you with an EB3 i140 application.

i-140 is an employer-sponsored application and cannot be filed by an individual.

Can I Downgrade EB2 to EB3 and then Upgrade to EB2 later?

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

Now, in the 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 the EB3 filing date chart.

Downgrading in advance to be ready to file i485 as you expect EB3 to be current for you in the 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.

Can I file EB3 to EB3 downgrade from India?

You can file EB2 to EB3 i140 downgrade while you are in India.

You cannot file the immigrant visa or i-485 from outside the USA though.

Many people are currently stuck outside the USA due to the travel ban.

You can file an immigrant visa application using form DS-260 with the US embassy only if your priority date has become current in the ‘Final action’ chart.

My company was acquired and amended i140 has been approved. Can it be used to file EB2 to EB3 downgrade?

You can file EB2 to EB3 downgrade using and amended i140 approval.

Will My EB2 i140 be lost if I downgrade to EB3 i-140?

Your EB2 i-140 is not lost even if you get EB3 i-140 approval.

You get the benefit of keeping both handy and use whichever date gets current first in the ‘Final action’ chart.

What if EB3 downgrade is denied?

You will still keep your EB2 approved i140 even if your Eb3 i140 is denied. There is no need to worry.

USCIS does not cancel or revoke your EB2 i-140 just because EB3 i-140 was denied.

Can I pay for filing EB2 to EB3 downgrade and i485 filing?

You can legally pay the cost of filing EB2 to EB3 downgrade from your pocket as confirmed by Ellisporter immigration attorneys.

This includes both the USCIS application and attorney fees.

Your employer can ask you to pay for this cost and it is legal.

When will I get My green card After EB2 to EB3 Downgrade?

The EB2 to EB3 downgrade does not guarantee a green card immediately.

Your green card application can only be approved if the date gets current in ‘Final Action’ chart.




Author

Written by AM22Tech Team
  AM22Tech Team     



Recent discussion on forum

  1. karthik_reddy
    karthik_reddy

    Hi Anil,
    In the below article you mentioned we need to file perm even if we are working for the same employer in Merge scenario - amended i-140 after merger/acquisition.
    I read somewhere, perm not required if it is the successor of interest(only i140 amendment is required)

    So when we downgrade from EB2 to EB3 no need for perm right? Can you please confirm?

    Can I file 485 under EB3 if EB2 is approved, but only EB3 is current? - YouTube.


  2. anil_am22
    anil_am22

    Hi @karthik_reddy

    ‘Successor of interest’ is an exception. You may not need a new PERM for this exception.


  3. coolkp07
    coolkp07

    Hey Anil,
    Thanks for all this work you are doing.

    Can an newly approved EB-2 PERM be used to file i-140 applications for both EB-2 & EB-3?

    Thanks,


  4. anil_am22
    anil_am22

    You should be able to file both EB2 and EB3 i140 at same time as far as i know.

    Talk to your attorney and see if they are comfortable filing both simultaneously.


  5. ramya_m1
    ramya_m1

    I am working at location A with Employer A and my I140 is approved for 6 years. I will be moving to a location B. Should I need to file a new PERM and i140 because of location change?


  6. anil_am22
    anil_am22

    You will require a new PERM and i140 if you intend to file i485 from location B. Basically, if your GC job has moved to location B, then it needs a new i140.

    You can move back to location A at the time of GC if you don’t want to file another PERM and i140.


  7. Froodo1
    Froodo1

    Hello All,
    Looking for some visa-processing literacy here.

    My AOS/EAD/AP application was submitted recently because my EB-2 priority date (PD) became current in EB-3 date of filing (DF). Along with these, my I-140 application for EB3 (“downgrade”) was also submitted.

    From what I understand:
    – USCIS will process all these applications in parallel.
    – Decision on EAD/AP and scheduling of biometrics can be done without waiting for a decision on I-485.

    I wanted to know:
    Q1.a) When will I-485 will be picked up for processing ? Is that when my priority PD becomes current for final action date (FAD) in this category?
    Q1.b) Also, is that when an interview is also scheduled (if required)?
    Q2) Will my I-140 have to be approved before I-485 can be processed?

    I am asking these questions, because I’m trying to ascertain is there any benefit to file for a premium processing of this new I-140? If the wait for I-485 to be picked up from the wait queue is large enough, what’s the rush to get I-140 processed now? FWIW, the difference between PD and current FAD is ~4.5years.

    Looking forward to your reply. Thanks!


  8. anil_am22
    anil_am22

    The i-485 can only be approved if your Final Action date is current.

    485 interview can be scheduled and completed anytime in preparation for your 485 approval. USCIS usually tries to finish all formalities in anticipation that the date will be current in the next 12 months.

    i-140 should be approved to get i-485 approval as it is an employment-based petition.


  9. gc2289
    gc2289

    Hello Anil, Below is my scenario.

    • Filed my I-140 in EB3 with PD Aug 2010 with Company A
    • Filed I-140 in EB2 in 2016 and Ported PD of Aug 2010 with the same Company A
    • My attorney has filed my I -485 in EB2 on OCT 30, 2020 using Dates for Filing dates,

    Based on the trend, it seems like EB3 may hit my PD sooner than EB2 and if EB3 dates become current then what are my options to use the current PD in EB3.

    Truly appreciate your help as both the petitions are with the same company and none of them have been revoked


  10. immif4t
    immif4t

    @anil_am22

    My PD is Sep/22/2016 when can i expect to be current on both EB2 & EB3 India please?

    Also, the EB2 to EB3 downgrade calculator gives me this result. “We suggest to wait and stay in EB2 queue. Chances of getting current are EXTREMELY low by Mar, 2024” does this mean after Mar/2024 my PD can become current under EB2 or EB3 India?


  11. anil_am22
    anil_am22

    The app calculation means that there is no need to file EB3 downgrade at this time as your date may not get current until at least Mar 2024.

    The estimates change every month with nee visa bulletin and you can come back and check the app next month for new estimate.

    It does not mean that date will get current after Mar 2024 immediately.


  12. deekaog
    deekaog

    Hi Anil,

    I have a PD of April 2015(EB2), and hope that it becomes current in Filing dates chart for October 2021.

    I am in the process of being promoted in my organization from position A to position B, and the duties definitely match 50%, and my attorney mentioned that if we have duties match 50%, then we do not need to file new PERM and I140,but can port these onto my new position.I am concerned what if they say that duties do not match 50% and thats when things might get complicated,.

    1)I did get in touch with Attorney on downgrading from EB2 to EB3 in October 2021, and they mentioned that we can downgrade using my existing position A PERM if dates are to become current in october 2021 , and wait till I-485 is 180 days old to file porting it over to position B.

    My question is,does this mean that I will still be able to obtain EAD,AP if position porting(without new PERM and 140- job duties matching 50%) happens ?

    Second question is, does this mean that I will still be able to obtain EAD,AP if we are to file new PERM and 140 for position B (since duties did not match 50%),after my previous I485 is 180 days old,do we need to file anything else here? I am concerned if we are to file a new I485 since it is a new position, and what if dates are not current any longer.

    Thank you!


  13. anil_am22
    anil_am22

    The new position should be in same or similar work area even if you file i485J after waiting for 180 days of i485 filing.

    The 50% is a generic guidance that most attorneys follow to judge if the new position is in same or similar work area.


  14. Mandeep_Raj
    Mandeep_Raj

    @Jeeya21

    Unfortunately, the retrogression of the visa bulletin means that your priority date is no longer current and it is not possible to file your I-485 based on older bulletins. Once your date becomes current again, you can file your I-485 (if with new employer, then you need approved I-140)

    @pr84 FYI


  15. dumchick
    dumchick

    Hi Anil,

    What is the impact on approved eb2 if downgrade petition is denied for ability to pay issue?


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