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.
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This article will discuss:
EB2 to EB3 Downgrade Process
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 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 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.
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 safe side:
- File EB3 i-140, i-485 along with EB-2 PERM in regular processing.
- Wait for the receipt number for EB3 i-140.
- Once you get the receipt number, upgrade to i-140 premium processing.
- 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 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 back up to your H-1B visa:
- 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.
- H4 Spouse can work: H4 dependent spouse can work using i-485 EAD.
- 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.
- 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 an 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 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 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.
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.
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.
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.
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.
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.
You can file EB2 to EB3 downgrade using and amended i140 approval.
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.
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.
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.
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.