As everyone awaits the last visa bulletin for this year, excitement is still high from the last two visa bulletins released by USCIS. Both October’s and November’s visa bulletins had a significant forward movement in employment based visa categories, especially for petitioners from India and China.
Several immigration changes coupled with the Covid-19 pandemic has triggered shorter green card wait times for EB-3 than for EB-2. With such a drastic jump in EB-3 category, many under the EB-2 category are motivated to downgrade to the EB-3 category.
Applications from India and China have historically exceeded their annual cap and therefore, end up waiting much longer for a U.S. green card. With the recent movement, many are considering a downgrade. We have broken down the process to downgrade from EB-2 to EB-3 in a simple, step-by-step guide.
Step-By-Step Process To Downgrade From EB-2 To EB-3
Keep in mind, this process is for those who are with the same employer who sponsored your EB-2 petition.
- Based on the existing PERM Labor Certification (EB-2), submit a new I-140 under EB-3 category;
- This should be supplemented with documents substantiating suitable qualifications for the EB-3 job profile, employer’s ability to pay new wages including employee’s pay stubs, W2 statements and employer’s income tax returns;
- If eligible based on filing date status, file Forms I-485, I-765 and I-131 concurrently;
- Await the I-140 receipt notice; Here’s a sample of the receipt notice
- If premium processing is being offered, use the receipt notice to apply premium for faster adjudication. Based on whether premium processing is offered by USCIS, you will get an answer about your EB-3 downgrade in either 15 calendar days or minimum 5 months.
Here’s the new fee schedule for Premium Processing
Benefits of Downgrading to EB-3
- As long as you are employed as a non-seasonal worker under a non-immigrant visa status, you meet the minimum criterion for EB-3 downgrade;
- Downgrading to EB-3 is a simpler process since the qualifications for EB-2 will most likely be eligible for EB-3;
- You can still retain your priority date from the original EB-2 petition;
- You can even use your current PERM provided the job profile, location and wages have not been altered;
- Current priority dates for EB-3 will lead to faster processing of the green card application;
- Allows for job portability according to the AC21 which means the applicant can change jobs and still retain his priority date;
- Dependents, including teenagers can get their EAD Work Permit and Advance Parole travel document sooner; this means they can begin working sooner;
- Based on how fast the dates move forward, dependents can even become eligible for their own SSN and the I-485 EAD which is faster than the H4-EAD given to H1-B dependents;
- Document list for EB-3 downgrade is very similar to those for the EB-2 petition, which is already available with your employer and/or your lawyer.
Disadvantages of EB-3 Downgrade
- This downgrade doesn’t apply to those eligible for a National Interest Waiver;
- Any errors in the previous PERM/Labor Certification will transfer to the downgraded petition and lead to an RFE;
- Employer has the additional burden to be able to show the ability to pay wages for a longer period & possibly for multiple beneficiaries;
- The supplemental documentation regarding educational qualification, job profile, etc. should be seen through with a fine-toothed comb; any eligibility errors can lead to a denial or an indefinite delay in processing times;
- Any fluctuations and/or retrogression in EB-3 India priority dates can lead to longer delays/wait time unfortunately;
- If the downgrade is not processed correctly, you may need to start a brand new case from scratch. This includes a new Labor certification followed by filing a new I-140 petition.
Frequently Asked Questions
- Do I have to pay more fees for the downgrade?
No, the adjustment fees include EAD & AP + renewals unlike earlier where each one was paid separately and ended up being very expensive. All other fee hikes have been blocked so far.
- What if the downgrade to EB-3 is denied?
If EB-3 downgrade is denied, EB-2 still remains valid. However, EAD and advance parole for dependents will be denied.
- Can I file for a EB-3 downgrade without an employer?
No. You need employer’s support since your non-immigrant visa which was originally sponsored by your employer.
- Will I have to ever go back to the old employer if I change jobs?
Yes, in very rare cases wherein you may require some documentation regarding your original sponsorship by them.
- Is the green card received after a EB-3 downgrade have any disadvantages?
No, downgrading from an EB-2 to and EB-3 does not deprive you of any green card benefits you would have otherwise received.
- Do I have to repeat my medical for the new EB-3 petition?
Medical results are valid until 2 yrs. So, do it after the I-485 has been filed and bring the results to the interview.