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EB-2 to EB-3 Downgrade: Key Points to Note

Posted by Kripa Upadhyay | Sep 30, 2020

The October 2020 visa bulletin and corresponding USCIS I-485 adjustment of status application filing charts have shown dramatic acceleration in availability of Visas under EB-3 Preference Category for India born applicants. Specifically, the cut-off date Per the Date of Filing Chart for EB-3 India is Jan 1, 2015, whereas the cut-off date for EB-2 India is May 15, 2011. 

This has now resulted in a mad frenzy to “downgrade” EB-2 petitions to EB-3 and avail of the option to file Adjustment of Status (AOS) concurrently so that the applicants can hopefully receive their Lawful Permanent Residence (after a laborious 10-year wait for most), or at minimum, be able to have job mobility with the Employment Authorization that is issued as a part of the pending AOS process. 

This option is only available for PERM-based I-140s

As long as you are employed with the same employer that filed your prior I-140, you can “downgrade” the I-140 to EB-3 preference category without having to go through the PERM process again. This; however, is NOT an option if your EB-2 is based on National Interest Waiver (NIW) as NIW is strictly for EB-2 preference category only.

Preserving the Age of Children

A lot of clients we have spoken with are eager to “downgrade” from EB-2 to EB-3 hoping that the concurrent I-140/AOS application makes their children eligible for Child Status Protection Act (CSPA) which freezes the age of the child from the time that USCIS receives the application till the time that they approve it. 

Clients must be aware that CSPA protection will NOT apply to EB-2 to EB-3 downgrades. CSPA applies only to the “applicable” petition, which in these case, is most likely the earlier filed EB-2 I-140. 

You should be aware that an aged out child will either need to move to his/her own status BEFORE age of 21 or they risk arrest and removal from the United States as an individual who has overstayed his/her authorized period of lawful status. 

No Premium Option for Downgraded Applications

The rules require the original Form 9089 to be included with the I-140, but in case of downgrades, the original was likely sent along with the earlier EB-2 I-140; hence, although you can file a 2nd I-140, you cannot do so with request for Premium Processing. You may; however, be able to convert the I-140 to Premium Processing once USCIS issues the I-797C receipt. 

Employer's Ability to Pay.

An employer sponsored I-140, including a downgrade from EB-2 to EB-3, requires the sponsoring employer to document “ability to pay.” The “ability to pay” MUST be documented going back to the original EB-2 priority date which may be difficult to retrieve for employers, and if the revenue earned is negative for recent two years, may allow USCIS to question the ability of the employer to continue to pay the employee the Prevailing Wage. Failure to meet the ability to pay the prevailing wage is grounds for denial of the application.

What Happens if EB-2 suddenly moves faster than EB-3? 

Different attorneys have different opinions on this so this is most complicated issue for those contemplating a “Downgrade” from EB-2 to EB-3. 

An applicant with an EB-2 I-140 would need to file a new I-140. At this time, USCIS may take the position, based on the Neufeld Memo,  that a new I-140 is an amendment to the currently existing one, in which case, the new I-140 replaces the prior EB-2 based I-140.

If USCIS follows the Neufeld memo and the EB-2 dates move ahead of the EB-3, then applicants would be stuck filing a new I-140 as an amendment asking for the EB-3 to be amended back to an EB-2!

Technically, the regulations seem to contemplate two competing I-140's for the same employee filed by the same employer, but I forget when the last time was that USCIS followed the easy path or the regulations for that matter! J

As always, please do not hesitate to reach out should you have any questions or concerns. My team and I will try to answer them as best we can. 

About the Author

Kripa Upadhyay

Kripa Upadhyay Founder/Attorney [email protected] EDUCATION Seattle University School of Law, Seattle, WA, Juris Doctor (JD)  May 2007 ADMISSIONS Washington State Bar Association: Admitted May 2008 U.S District Court for the Eastern District of Washington: Admitted 2009 U.S...