EB2 to EB3 Downgrade Process, Risks (Fast Green Card)

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
  By AM22Tech Team    Updated  1 Apr, 21


Should I downgrade (Check using App)?

Here is our app to help you decide if you should do the EB2 to EB3 downgrade or not. It is still new and will improve overtime as we make changes continuously.


Should I Downgrade? Check with Estimator App >

Here is the i485 filing checklist for employment based green card.

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 for EB3 downgrade.

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 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.

Premium Processing for Downgrade

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 the i140 application.

What houston based attorney Rahul Reddy suggests:

  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 exception:

  • If your i140 EB3 downgrade is filed at the SAME service center that earlier approved your i140, 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.

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:

  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 even if DHS revokes the H4 EAD work authorization.
  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 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 Using EAD Means Abandoning H1B/L Status

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

#2 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.

#3 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.

#4 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.

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 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.

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.

Indian EB2 vs EB3 – i485 Pending Applications

The GC availability in Indian EB3 seems to have a 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 a far long jump in the new 2018-19 USCIS GC priority date season as has been indicated by the current trend.




Author

Written by AM22Tech Team
  By 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. rkat
    rkat

    Hi @anil_am22,

    I have an approved EB2 I-140 with my current employer with Senior Software Engineer role, recently got promoted to Principal Software Engineer, the responsibilities are 90% exactly same and Both roles have same SOC code. Can I use existing PERM and I-140 to downgrade to EB3 and file I-485 concurrently? or do I have to have PERM done all over again? What if my employer and I agree that once I-485 is approved, I would go back to Senior Software Engineer, would that work? and Can I use existing PERM in that case?.

    Thanks in advance
    Raj


  4. Anjaly1
    Anjaly1

    Hi Anil,
    I have an approved I 140 from EB2 category. Can I file for another I140 using the existing PERM in EB 3 category? Is there any risk to my EB2 I140? Because I want to maintain both. Please advice.
    Thanks.


  5. Lalit_Kumar
    Lalit_Kumar

    Hi Anil, I have question regarding EB3 to EB2 downgrade risk. In your article, its mentioned that if we use EAD Card then can’t port our application back to EB2.

    What if my wife uses EAD card and I remain on H1B. In this case, switching to EB2 is allowed by USCIS or not?

    Thanks


  6. Durga
    Durga

    Hello,
    My I-140 was approved back in 2014, my PD being 2012. Now i’m with employer B.
    With recent hype/commotion in visa dates, i’ve asked my current employer B to start porting my approved I-140.

    When i spoke to my previous HR, i was told that my new employer can simply file a job change application and start I-485.
    But my current HR says that i need to start the whole PERM process from scratch, so i better go back to my previous employer and get the I-485 filing done.

    I’m confused. Is it mandatory to file PERM/Labor again or my current HR is confused?

    thanks,


  7. immiravs
    immiravs

    Based on my experience being in the same boat 5 years ago, you need to start a new PERM process and file for I-140 and retain the previous PD.


  8. gousagc
    gousagc

    Hello Folks,

    I have EB2 priority date SEP-2011 with employer A. Now I’m working for employer B, who is yet to start GC process, I feel it will take 9-12 months to start the process and after that another 8-12 months for PERM approval. So

    1. Is it GOOD to downgrade from EB2 to EB3 with employer A & file I140 & I485 together as future employment?
    2. If I downgrade from EB2 to EB3, will my EB2 I140 still valid?
    3. While Pending downgraded EB3 AOS application, will employer B can start PERM & I140 in EB2 and by that time EB2 dates are current, can employer B file I485?

    Appreciate your responses.


  9. anu_red
    anu_red

    Hello Anil,

    I have transferred from Employer A H1B until 2020 feb to Employer B and H1b is approved for 3 years, I have I 140 beyond 180 days with PD of June 2012 EB - 2. I have following questions:

    1. If Priority date becomes current under EB 2, can I go back to Employer A ? And does Employer A need to apply for H1B as my H1B approved with them was only until Feb 2020.

    2. I’m aware that Employer B can file green card using previous I 140, should he start from scratch applying labour, PERM and all ?

    Appreciate your response!

    Thanks,
    Anu


  10. gc2289
    gc2289

    Please assist me with the below query.
    Situation: SAME Employer - Filed EB3 with PD Aug 2010. Upgraded to EB2 in 2016 and retained the PD.
    Query: I’m debating if I need to file my 485 in EB3 or EB2 category since Dates For Filing is current for both the categories.
    Scenario 1: If I file my 485 in EB2 and in future if EB3 Finals Action Dates become current then - Can I file 485 in EB3?
    Scenario 2: If I file my 485 in EB3 and in future if EB2 FInal Action Date becomes current then can I file my 485 in EB2.

    In general, am I even eligible to file my 485 in EB3 since I have already upgraded to EB2 in 2016.

    Appreciate if you could bring some clarity to the sitiuation.

    Thanks


  11. gin
    gin

    My India EB2 PD is in March 2014. (I’ve been at the same employer since then). With the October-2020 bulletin I can file an I485 with an EB3 downgrade (and the employer is willing to do it if I want)

    If I file, I expect to be in this new “I485-pending” queue for the foreseeable future. And I’ll be maintaining H1B (and EAD/AP) thru this time.

    Assuming that the EB2 -> EB3 Final Action dates will flip-flop back again (say after 5 years). I know if I stay at the current employer I can interfile again against my existing EB2.

    However, if I want to switch to another employer in a couple of years from now (ensuring 180 days 1485 ending)? And EB2-EB3 dates flip-flop:

    Will the new employer need to file a new EB2-PERM-I140? Are they even able to file a new EB2-PERM-I140 and link (interfile) it with the existing EB3-based I1485? (re-upgrade if you will)
    (Or does the EB3 I485 rule out EB2 transfers with future employers?)


  12. Srinivas_Doppalapudi
    Srinivas_Doppalapudi

    Hello

    I have a question on I-485 filing, Company A filed my GC with priority date 2013 on EB2 category. I changed to company B but company B has not initiated the GC process.
    I have below questions,

    1. Can my old employer company A can file my I-485 while I am in still company B.
    2. If my new company B starts the GC process now, how long it will take to get to I-140 (I know it depends on many factors, but looking for an estimated time)
    3. As of now EB3 current is 2015 Jan, Can I file I-485 immediately after my I-140 approval.

    Thanks for your help


  13. zoomingrocket
    zoomingrocket

    My lawyer is suggesting that in a departure from USCIS practice, we no longer can have both EB2 & EB3 i-140 alive, is this true??

    Quote
    “In a departure from prior practice, USCIS now requires that the EB2 petition be amended to EB3 in order to downgrade. This means that, upon approval of the EB3 request, you will not have an EB2 I-140 approval to which you could return (if, for example, the EB2 and EB3 dates flip and EB2 becomes more favorable) unless you file yet another I 140 amendment to upgrade from EB3 back to EB2 (with the attendant risks and costs described above)”

    Need confirmation on this, thanks!


  14. Jeeya21
    Jeeya21

    When I was at previous employer I had I-140 approved in EB2 with priority date in Jan 2015. I moved to New employer on June 29 2020. I have H1B approved at new employer and they will be filing PERM soon ( in next few weeks). According to Oct Visa bulletin my priority date is current for EB3, I want to discuss if I have any option (either from previous or current employer) to file I-1485 . If not, what is your recommendation (or just wait for next visa bulletin) and when you think I can file I-485 next.


  15. 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,


Comments are closed. Ask question on Forum

23 more replies