EB2 to EB3 India Downgrade – Feb 2020 Green Card

Indian EB2 vs EB3 green card priority date movement. Date of filing chart available for use in 2020. File i485, EB2 to EB3 downgrade with approved i140.

Written by Am22tech
  By Am22tech      Updated  4 Feb, 20

  392    


EB2 to EB3 Downgrade India

EB2 final action date is ahead of EB3 in Feb 2020 visa bulletin by 4 months.

The Date of Filing chart has been made available by USCIS for use starting Oct 2019. The EB3 India is ahead of EB2 in DOF chart and hence you can file the downgrade.

Feb 2020Date of FilingFinal Action
EB1 India15 Mar 171 Jan 15
EB2 India1 Jul 0919 May 09
EB3 India1 Feb 108 Jan 09

You can get green card faster in the EB3 category is your EB3 PD date is current in EB3. This has happened with China in past and now with India.

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

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 Jan 2020 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.

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.

EB3 Downgrade premium 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.

Downgrade EB3 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.

Upgraded EB3 to EB2, 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.

Downgrade EB2 to EB3, Upgrade to EB2 later?

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.


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Recent discussion on forum

  1. S_Kumar
    S_Kumar

    Hi Anil,
    My PD is EB2 India July2010. Was wondering how long it may take before my PD becomes current? May be EB3 would be a faster option if it reaches July2010 ahead of EB2. Appreciate your thoughts. thanks.


  2. Andy99
    Andy99

    Me & my wife’s I-485s are pending based on my approved EB2 I-140. My wife was able to get an approved EB3 I-140 and then approved EB2-140 through her employer. How can we interfile to be able to use my wife’s EB3 PD (which is current right now). USCIS is not willing to listen since our EB2 PD is not current yet.


  3. Anil.Gupta
    Anil.Gupta

    Hi @REB2

    You cannot use the ‘Date of filing’ chart dates at all at this time. That simply means that you could have filed it when ‘Date of filing’ chart was available for use till Jan 2019.
    You have missed the chance.

    Once the chart is available for use, you can file EB2 to EB3 i140 + i485 concurrently in future.


  4. jitesh7746
    jitesh7746

    Hi My PD is May 26, 2009 EB-2 India. I am with same employer since beginning and have EAD as well. My employer is willing to downgrade to EB3. What is your suggestion on this? Downgrade to EB3 or wait with EB2?


  5. Anil.Gupta
    Anil.Gupta

    Hi @jitesh7746

    I suggest to downgrade to EB3. Not sure why have you not done it till now.


Comments are closed. Ask question on Forum (we answer in 1-24 hour)

22 more replies

  392 Useful Questions & Answers

  1. Ram
    Ram 16 Dec, 18 at 3:54 pm

    hi
    My current company is not doing well and its under bankruptcy protection. I have EB2 with priority date of Mar 2010 with same employer. Employer ready to support EB3 downgrade option next month as Filing date is current. I never applied EAD before.

    I have following question.

    I would downgrade to EB3 and concurrently file I-485/EAD etc. Nowadays , I-140 regular approval is taking more than 6 month for approval.
    What would happen if I leave the current employer after 180 days of my I-485 receipt notice but still underlaying EB3 I-140 is pending. If I do AC21 to new employer but still I-140 pending, what are all the issues needs to be considered? If its 180 days, is it automatically approvable when I do AC21 if its filed with proper documentation?
    Thanks
    Ram


    • Anil Gupta
      Anil Gupta 16 Dec, 18 at 4:10 pm

      If you leave while EB3 i140 is pending, the chances are high for RFE and then rejection as you would not be working for that employer.


      • Ram
        Ram 16 Dec, 18 at 4:14 pm

        Thanks. If i140/i485 pending for more than 180 days, can I do anything for I140 RFE or fate is decided based on i140 only?
        ie Does USCIS consider my case if I do AC21 after 180 days but I140 is pending ?


        • Anil Gupta
          Anil Gupta 16 Dec, 18 at 4:26 pm

          AC21 rule comes into picture only if i140 is approved.
          If you receive RFE on i140, how will you respond to it if you are not working for that employer at that time?

          Also, the chances are high that your employer would itself withdraw the pending i140 when you leave.


          • Ram
            Ram 16 Dec, 18 at 4:36 pm

            Thanks Anil. Let’s say employer does not revoke my i-140 petition as I would leave with good term with mutual understanding. If i-140 is pending for more than 180 days, in that case does USCIS would do any weightage for my AC21 with new employer’s JobDetails/Supplement J ? ie Can I do something to any I-140 REF ?


            • Anil Gupta
              Anil Gupta 17 Dec, 18 at 8:18 pm

              You should talk to an attorney about this particular scenario and if it is possible in your case.


  2. Krishnan
    Krishnan 16 Dec, 18 at 7:28 am

    Same employer upgraded from EB3 to EB2 after promotion within the same business unit / department. Is it possible to downgrade to EB3 and benefit from the faster movement in EB3?


    • Anil Gupta
      Anil Gupta 16 Dec, 18 at 7:32 am

      Yes, you can downgrade to EB3. Infact, if you are with same Employer, your EB3 i140 will still be valid.
      You can simply use it and file i485. You are in an even better position.


  3. Gopal K Panda
    Gopal K Panda 14 Dec, 18 at 4:54 pm

    My Company which filed for PERM , I-140 and 1-485 has closed long back , what should i do to downgrade from EB2 to EB3 . My Priority date is Jan 2010


    • Anil Gupta
      Anil Gupta 14 Dec, 18 at 4:55 pm

      Your current employer can file EB3 i140 using your current EB2 PERM.


  4. Satish Gotti
    Satish Gotti 14 Dec, 18 at 12:44 pm

    Anil – my EB2 PD is in Feb 2010 and i have EAD + AP (for a while now). Still employed at the same company. Given the EB3 filing dates moved past Feb ’10, should i consider EB2- EB3 downgrade? Any considerable risks?

    Thanks for taking time to respond to each question – much appreciated.


    • Anil Gupta
      Anil Gupta 14 Dec, 18 at 1:36 pm

      The only risk if you downgrade at this time is same as you are currently experiencing with EB2 pending i485 approval due to retrogressing of dates.
      It is possible that your EB3 i485 is still pending and EB3 priority date is retrogressed.


  5. Krithiga Venkatachalam
    Krithiga Venkatachalam 13 Dec, 18 at 6:16 pm

    Our PD December 2010, had approved I140 in EB3 with employer A and upgraded last year to EB2 using the same PD. Switched job to employer B and just started with GC process but in very good terms with Employer A. So, when date becomes current can I still use EB3 I140 from Employer A and file 485?


    • Anil Gupta
      Anil Gupta 13 Dec, 18 at 6:40 pm

      Yes, you can file if the employer A still has the EB3 job offer and did not wothdrew i140.


      • Krithiga Venkatachalam
        Krithiga Venkatachalam 13 Dec, 18 at 6:50 pm

        Thank you for the response. I140 is not withdrawn but will check about the job offer.


  6. VRed
    VRed 12 Dec, 18 at 3:04 pm

    Hi,
    My priority date is May 2010 and I have an EB3 I-140 approval with company A. But my company A was taken over by company B and ported my GC from EB3 to EB2, so logically speaking both my EB2 and EB3 I140 are active.
    – What is the chances of May 2010 becoming current to file for I485 ?
    – If by god grace my date comes through in the filling bulletin will i be eligible to apply I485 directly or i need to downgrade again?

    please suggest.


    • Anil Gupta
      Anil Gupta 12 Dec, 18 at 3:25 pm

      Doess company A entity still exists? and does it’s EB3 job offer still available?
      If not, then you will need to file another i140.

      Chances are good for EB3 moving to May in current fiscal year.

      Yes, you can file i485 but if company A does not exist now, you need new EB3 i140.


      • VRed
        VRed 13 Dec, 18 at 8:09 am

        Company A is acquired by company B which means all the assets and resources now belong to company B. Company A is nomore there.


        • Anil Gupta
          Anil Gupta 13 Dec, 18 at 8:13 am

          Its not that simple as you may think.
          Ask your attorney if the Company A’s ‘all interests’ were taken over by Company B including for the purpose of immigration?

          He would know a lot of details about it.
          I just mean to say that do not assume that your EB3 is still valid without verifying with your employer’s attorney.


          • Vred
            Vred 13 Dec, 18 at 8:48 am

            Thanks so much Anil for your time and valuable answers for my concerns. I will check with my company attorney.


            • Anil Gupta
              Anil Gupta 13 Dec, 18 at 9:04 am

              You are welcome. All the best and let me know if you need more help.


              • Vred
                Vred 18 Dec, 18 at 1:14 pm

                I spoke to my attorney and he confirmed that my EB3 I140 applied by company A and EB2 I4p by company B are active under company C as company C took over all the assets. What do you mean by “Is employer still offering you the same EB3 job “? If my EB3 I140 is active which means that the EB3 job position is open? Please correct me if my understanding is wrong. Thanks for your time.


                • Anil Gupta
                  Anil Gupta 18 Dec, 18 at 2:02 pm

                  Great.. You are lucky that your EB3 i140 is still available 🙂

                  When you file EB3 i485, employer has to prove that they still have the same EB3 job that they claimed in EB3 PERM. Your Green card application will be processed for that position and job. So, that job position should exist.


  7. Kuri Ram
    Kuri Ram 10 Dec, 18 at 9:42 pm

    hi,
    I had my previous I-140 with Priority date as Sep 2009 in EB2 India. On Sep 2018, my current employer applied in EB2 and its normal process & still pending status. Now my old priority date is current based on EB3 date. Is it possible to change EB2 category directly in the pending I-140 ?. Is there anyway to request USCIS to change the category without new brand new EB3 downgrade option ?

    Thanks


    • Anil Gupta
      Anil Gupta 10 Dec, 18 at 9:49 pm

      I do not think there is an option to change anything in the pending application.
      You will have to file a new i140 for EB3 downgrade.

      It is better you immediately file EB3 i140 + i485 as the date might not stay current for long. You will miss the bus.


  8. Rag
    Rag 10 Dec, 18 at 7:37 pm

    Hi
    I have eb3 with previous employer and priority date is Aug 2009.
    I have eb2 with current employer and I did eb3 downgrade and filed i485 today. Looks like downgraded i140 would take 6 month to approve. Shall I join with previous employer ASAP next month and interfile his approved i140 and join his company. Is there any issue if current employer with draws the pending i140? Please note I am going to interfile first and resign from current company.


    • Anil Gupta
      Anil Gupta 10 Dec, 18 at 7:59 pm

      You can join the precious employer with EB3 I140 already approved and it may be processed faster than your current your current EB2 to EB3 downgrade and it needs i140 to be approved first.

      If the current employer withdraws the EB3 i140, it is gone. You will have to file another one if you want to file it again.

      Each EB3 i140 is for a different job and with different employer, so, it should not be an issue.


  9. hiperm
    hiperm 7 Dec, 18 at 12:10 am

    ================
    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.

    ================

    hi
    I have i-140 in EB3 from employer A and not having good term. But still my i-140 is not with drawn. I moved to employer-B and having I-140 in EB2. My priority date is Dec 2009 in EB2. Do I need to downgrade my Employer B’s EB-2 I-140 to EB3?


    • Anil Gupta
      Anil Gupta 7 Dec, 18 at 8:22 am

      Yes, you are eligible with Dec 2009 date to file i485 in EB3. You should talk to your employer and attorney and file EB3 i140 using EB2 PERM and get green card faster.


  10. Ashwin
    Ashwin 30 Nov, 18 at 9:40 am

    Hi Anil,
    Thanks for the explanation. I have some questions:
    1. Topic “Downgrade EB2 to EB3 and then Upgrade…”. Here you mentioned about filing I485 along with I140. If you already filed I485, you will get a GC right? Then why would you want to refile I485 if later EB2 moves faster? Or are you indicating about filing date instead of final action date?
    2. Topic “File EB2 to EB3 Downgrade for Future…”. Here the only advantage is that you will have the I140 EB3 ready sooner when priority date becomes current in EB3, right? Is there an advantage in terms of getting GC faster as opposed to filing I140 and I485 together later on?
    3. In light of recent scrutinies, based on your research, do you think the EB1C filings by Indian consultancies have reduced?


    • Anil Gupta
      Anil Gupta 30 Nov, 18 at 10:43 am

      1. I am talking about the ‘Filing Date’ case. If the EB2 Final Action date is current, then there is no need to downgrade.

      2. Yes, you are right. You may get a bit of time advantage by filing the downgrade in advance as no i140 approval is needed at the time of filing.
      But, since, Indian EB3 has started moving past EB2 in last 2 visa bulleetins (Starting oct 2018), it is too early to say anything about future leads that EB3 may or may not be able to maintain.

      I would say, lets wait for another 3-4 months and you will automatically start seeing people jumping the ship based on EB3 vs EB2 movement.

      3. Indian consultancies have not really reduced filing EB1C but have been receiving hell lot of RFEs to prove the person is really an international manager. USCIS has kind of increased the scrutiny (which is actually good) for other categories like EB2.