announcement in late September that it will accept the
favorable October FY 2021 visa bulletin filing dates, many candidates have seen
a significant improvement in their chances to file a long-awaited adjustment of
status (I-485) application.
the October visa bulletin, all categories besides India and China are current.
Notably, China’s and India’s EB3 categories give eligibility to file to
priority dates that are more
recent than those of the EB2 category.
are three options for those looking to downgrade their I-140:
the existing I-140: An I-140 amendment is a request that the
USCIS reopen the EB2 case and convert the EB2 I-140 to an EB3 I-140. The USCIS will again review the EB2 I-140 and,
if the amendment is approved, convert the EB2 to EB3. If the EB3 dates later retrogress, a new
I-140 will have to be filed to obtain an EB2 priority date.
a new I-140: A new I-140 includes a new wage request, a
new Notice of Filing posting, a new labor market test and a new Labor
Certification (when required). A new
I-140 may be required if the employee has moved to a new worksite, new
position, or new employer and cannot return to the worksite, position, or
employer listed on the approved I-140.
Once the new I-140 is approved, if the employee’s priority date is
current, he/she can file an I-485.
a second I-140: A second I-140 can be filed in PERM case (one that requires a labor
market test) with an expired Labor Certification. If an I-140 is filed during the six month
validity period of a Labor Certification, the Labor Certification becomes valid
indefinitely and can be re-used in subsequent I-140s. A note that the USCIS will only accept an
expired Labor Certification if it was certified by the Department of Labor, so
this option is not available in Schedule A cases for PTs and RNs.
the current “flip-flopped” EB3 vs. EB2 priority dates, below are MU’s
“need-to-know” points for Chinese and Indian nationals considering an EB2 to
Will EB3 filing dates always be more
favorable than EB2 filing dates?
visa bulletin changes every month; there is no guarantee that the visa bulletin
categories will remain the same for November or any of the following months.
For this reason, it is unclear whether EB2 or EB3 will move faster in the
coming months or years.
Processing is generally not available when filing a second I-140. However, in
some cases, the USCIS may accept a Premium Processing request. Premium processing is usually available when
filing an amendment or new I-140.
Can I retain both an EB2 and EB3
I-140 approval simultaneously?
you can hold two approved I-140s. Those filing for an EB3 downgrade by
submitting a new or a second I-140 will retain an EB2 I-140, and hold the EB3
I-140 once it is approved. If the EB3 downgrade is filed as an I-140 amendment
to the EB2 petition, the USCIS will convert the EB2 priority to an EB3 priority
and the EB2 will no longer be viable.
exams must be submitted to the USCIS within 60 days of the physician’s
signature and, once filed with the USCIS, are valid for 2 years. If the
I-485 approval is not issued within 2 years, the applicant will have to get a
new medical exam. The I-485 can be filed now – without a medical exam - and
the USCIS will issue an RFE or a letter of deficiency later in the process and
ask for the medical exam at that time.
- Child Status Protection Act (CSPA)
the USCIS is accepting the rarely used Filing Dates chart, beneficiaries should
be reminded that the privileges of the Child Status Protection Act (CSPA) do
NOT extend to filing dates. If you have a foreign-born child nearing the age of
21, please contact your MU attorney immediately.
- Filing EB3 I-140 concurrently with
will want to weigh the costs at risk by filing a concurrent I-485. By first
filing the I-140 and securing an approved I-140 prior to filing an I-485, the
beneficiary and employer avoid the risk of having the I-485 automatically
denied because of a denial of the I-140. Keep in mind that an automatic denial
of an I-485 when filing concurrently means that none of the associated filing
fees will be refunded.