Monday, October 5, 2020

CONSIDERATIONS WHEN DOWNGRADING FROM EB2 to EB3

Following the USCIS’s 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. 

In 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. 

There are three options for those looking to downgrade their I-140:

   1. Amending 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.

2. Filing 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. 

3. Filing 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. 

Given 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 EB3 “downgrade”:

  •  Will EB3 filing dates always be more favorable than EB2 filing dates?

The 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.

  •  Premium Processing

Premium 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?

Yes, 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.

  •  Medical Exams

Medical 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) Considerations

Because 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 I-485

Applicants 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.

4 comments:

  1. Hi, Atty.. so for PT and RN has only option 1 and 2. So question regarding option 1---during process of downgrading from EB2 to EB3 IF EB3 decline or RFE in some problem so can we used EB2 in later?

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    1. It depends. You really want to talk to your attorney about your specific case. This is too important to rely on generalized statements on a blog. This blog post is merely things to consider.

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  3. Hi Atty,

    I am a PT and have my EB2 PD of Dec'15. I understand that I can't use option 3. If I take option 2 and go for a new i140 for EB3 (with PWD and all associated formalities), can I retain my PD of Dec'15 for both these applications?

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