The October Visa Bulletin showed that green cards are available in the EB-3 category sooner than in the EB-2 category. I have an approved I-140 petition in the EB-2 category. Can I “downgrade” to an EB-3 to take advantage of the availability of visas?

By October 12, 2020Immigration
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As explained in a separate blog post found here, the October 2020 Visa Bulletin generally saw significant forward movement on visa availability. The October Bulletin also showed that lower-preference employment categories (for example, the EB-3 category) are able to receive green cards faster than some higher-preference categories (for example, the EB-2 category). This raises an important question: can individuals who have applied for a green card in an EB-2 category “downgrade” to an EB-3 category in order to get a green card sooner? The answer is yes.

First, a bit of background: What is the Visa Bulletin and how does it work?

The Visa Bulletin is necessary because each fiscal year the U.S. government can only give out a limited number of immigrant visas (or green cards). The law limits how many immigrant visas can be issued for each country and in each category (family-based or employment-based). The U.S. government provides the Visa Bulletin to keep track of visa numbers and to give you a tool to determine when you can file your green card petition and when it can be approved. You can use the Visa Bulletin whether you are filing a Form I-485 with U.S. Citizenship and Immigration Services (USCIS) or consular processing through the U.S. Department of State (DOS) to obtain an immigrant visa in your passport.

Remember that your Priority Date is the “Received Date” of the Form I-130 or I-140 immigrant petition at USCIS (or, if your I-140 is based on a Labor Certification, your Priority Date is the date you filed the Labor Certification). If your Priority Date is “current” according to the Final Action Dates Chart (meaning that your Priority Date is earlier than the Cutoff Date in the box matching your country of birth and visa category), you (1) can file an I-485 application to USCIS, (2) USCIS can approve your pending I-485, and (3) a consulate can issue your green card to you.

As another reminder (further explained in our blog post here), in October 2020 USCIS determined that the Dates for Filing Chart (rather than the Final Action Dates Chart) applies to employment-based I-485 applications. This means that those individuals whose Priority Dates are current according to the Dates for Filing Chart can file their I-485 and immediately apply for employment and travel authorization. Note that the Dates for Filing Chart does not determine when the green card can actually be issued – a green card will not be available until the Priority Date is current according to the Final Action Dates Chart.

The Dates for Filing Employment-Based Chart for October 2020 is copied here:

For example, if you were born in India and your Priority Date is June 15, 2014, in the EB-3 employment-based category, the chart above shows that your Priority Date is earlier than the Cutoff Date of January 1, 2015, for EB-3 India – therefore, your Priority Date is current and you would be able to submit a Form I-485 while simultaneously applying for work and travel authorization.

Why is the cutoff date of the EB-3 category sooner than the cutoff date for the EB-2 category? Isn’t the EB-2 category more exclusive?

You might have noticed that, in the example above, the Indian national with a Priority Date of June 15, 2014, is current in the EB-3 category. But an Indian national with the same Priority Date in the EB-2 category would not be current, and would need to have applied four years earlier in order to be current (May 15, 2011, to be exact).

This is unusual, but not unheard of. The EB-2 category is more difficult to qualify for – many individuals in the EB-2 category also qualify for the EB-3 category, while the opposite is not true. This raises an important question: why would an individual in the EB-2 category not move, or “downgrade,” to the EB-3 category if it would mean shortening the process of receiving a visa by several years? Many people do, in fact, take advantage of this anomaly since regulations allow an individual to keep the priority date of an approved I-140 petition and apply it to a future I-140 petition filed on their behalf (even if the I-140 petitions are filed by different employers). See 8 CFR section 204.5(e).

I have an approved I-140 and am waiting for my Priority Date to become current. How do I downgrade?

An individual who qualifies for the EB-2 category should also qualify for the EB-3 category, and the same Labor Certification that was used in the EB-2 application can typically be used in the new EB-3 filing.

If you have an approved I-140 and your Priority Date is not yet current in your visa category, but is current in a lower-preference category, in order to downgrade, your sponsoring employer would file a new I-140 petition for you under the EB-3 category while simultaneously filing an I-485 Application to Adjust Status. Your spouse and children would also be able to file I-485 petitions as your derivatives.

Although the green card will likely not be available until your Priority Date becomes current on the Final Action Dates Chart, there are immediate benefits to filing your I-485. As soon as you file your I-485, you can apply for employment and travel authorization.

As an example: you are an Indian national with an approved I-140 in the EB-2 category. Your Priority Date is June 15, 2014, meaning that your Priority Date is not current in the EB-2 category, but would be current in the EB-3 category. Your employer can file an I-140 and concurrent I-485 on your behalf to downgrade to the EB-3 category. You would immediately be able to apply for work and travel authorization upon submission of the I-485.

The cutoff dates for visas change every month. What if I downgrade now, but next month the cutoff date for my downgraded category is more delayed than my original category?

There is a real possibility that this may occur, given that the cutoff dates do change from month to month, and are known to move backward (called “retrogression”). Fortunately, if you downgraded by filing a new I-140, your original approved I-140 should still remain in effect – you would simply have two concurrent I-140s. As a result, you would be able to refer to your earlier I-140 in the original category if your Priority Date in that category should become current before the downgraded category.

Note that this is in contrast to filing an “amended” I-140 in the downgraded category. When an amended I-140 is filed, it takes the place of the original, thus no longer holding your place in line for that original category.

Is it really that simple? What are the risks?

There are a number of risks you should be aware of, and it is recommended that you consult with a qualified immigration lawyer before attempting to downgrade.

One risk is that the government will reject your new I-140 application, claiming that it must be filed as an “amendment” to the original I-140. This does occur, but rarely. It also typically means that while you cannot downgrade to the new category, your original I-140 should survive (so long as you do not actually file an amendment to the original I-140). However, if your downgraded I-140 is rejected for reasons that should also have applied to the original application, the government can revoke your earlier I-140.

Also, if you have a child who might approach the age of 21 before your Priority Date becomes current according to the Final Action Dates Chart, you should prioritize speaking with an immigration lawyer. There is a risk that your child may “age out,” or become ineligible for a green card due to their age.

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