EB-2 to EB-3 India Downgrade: Process, Steps, Cost, Pros and Cons
As per the October 2020 visa bulletin, the cutoff dates for EB-3 India advancing and becoming more favorable than the EB-2 India cutoff dates and creating EB-3 India downgrade opportunities for some.
Who will this benefit?
EB-2 India applicants with a priority date between May 15, 2011, and January 1, 2015, would be able to downgrade to EB-3 and file I-485. Likewise, applicants who act faster, are better organized, who do not have a pending I-485 application, reside in an area where I-485 interviews are scheduled faster, and who have more advanced priority dates may expect faster I-485 approval under EB-3. This window has been extended till 30 November 2020 (as per the Nov visa bulletin). Not sure if it will be open in November as well.
Why should someone consider downgrading from EB-2 to EB-3?
Since the long-term wait time for EB-3 India Green Card is typically longer than that for EB-2, it may ultimately take longer to get the green card approved unless there is a subsequent future upgrade of the process to EB-2. However, the two major advantages of downgrading are: obtaining independent work (EAD) and travel (advance parole) permits for both principal applicant and family members.
The EAD will help you will give you the flexibility to change jobs. So, if you are fired from your current job, you no longer have to pack your bags and return to India. With Advance Parole, you no longer have to depend on getting your visa stamped at the US Consulate of your home country as you can enter the US with Advance Parole. If you want, you can continue on H1B while your dependant can use I 485- EAD.
As many EB-2 India applicants are downgrading, the EB-3 India category might witness much more demand which, in turn, will cause EB-3 India to slow down further while EB-2 India to possibly advance faster. What happens then?
Going through an EB-3 downgrade process does not automatically invalidate the prior EB-2 petition so in the event the EB-3 downgrade is not successful (such as the EB-3 I-140 is denied, for some reason, or withdrawn), as a general matter, the EB-2 petition remains unaffected.
Would EB-3 downgrade cancel my EB-2 petition?
The filing a new EB-3 petition normally does not automatically invalidate the existing EB-2 I-140 petition. However, when the EB-3 I-140 petition is approved, USCIS would likely consider the case to be based on EB-3 based on a more advanced cutoff date under EB-3.
Can I upgrade my pending I-485 to EB-2 in the future?
Generally, yes, as long as the government does not find a reason to revoke the earlier approved I-140 (this is rare, but certainly possible) but most likely it will have to be based on a different PERM/I-140 petition under EB-2. In the event the EB-2 Final Action dates become more favorable than the downgraded EB-3 petition (which is very likely at some point in the future) it may be possible to “link” the pending I-485 to a different EB-2 I-140 petition with a current priority date.
In case my priority date is current in EB2 do I need to apply for I-485 again or I can use the EB3 I-485 application?
Unless the govt changes its policy (probably illegal for them to do that), you can use the pending I-485 and not file another one for EB-2.
How does the EB-2 to EB-3 downgrade work?
- PERM Labor Certifications which have been used for the EB-2 petition can be used to support an EB-3 petition by the same employer and for the same position. The downgrade process involves the submission of a new I-140 petition filing with USCIS using the prior PERM Labor Certification- without having to do a new PERM Labor Certification.
- When the new EB-3 I-140 petition is approved and the EB-3 priority date is current, the applicant can then file a Form I-485, Application to Adjust States, together with the companion EAD work permit and advance parole travel applications.
- Since the main goal of the EB-3 downgrade is to be able to file an I-485 adjustment of status and since we do not know how long the favorable cutoff dates in the Visa Bulletin will last, it is recommended to filing for both I-140 EB-3 downgrade and I-485 concurrently.
Can you file I-140 in premium?
USCIS does not allow premium processing where the I-140 petition is being filed without an original PERM Labor Certification; however, there is a limited exception which would allow requesting premium processing for I-140s filed without an original PERM Labor Certification if the new I-140 is being filed with the same service center as the prior I-140. However, in some instances, USCIS has rejected the entire I-140 for which premium processing has been requested. To minimize this risk it may be prudent to file the I-140 EB-3 downgrade with regular processing (again, with the I-485 adjustment of status) and then, once receipt notices are issued in few weeks, to then attempt to upgrade the pending I-140 to premium processing.
- The EB-3 downgrade process requires the employer to submit another I-140 petition with its associated fees. A lot of companies are not willing to bear the expenses for this downgrade.
- Turn around time is extremely crucial. It may not be possible for the attorney and the applicant to arrange the paperwork on time- including reviewing the PERM, prior EB-2 I-140 and financial situation over the prior years. The key here is to 'ACT EARLY'.
- Obtaining tax transcripts can take a lot of time if your telephone number is not registered with the IRS. In that case, you need to request for a PIN which takes about 14 business days to arrive. Once you have the PIN, you can download the transcripts online. To expedite the process, call up IRS and request them for a PIN and at the same time ask them to mail you the tax transcripts. The transcripts will take about about 10-11 calendar days to arrive.
- Getting your birth certificate that has your name on it is another challenge. Ensure you have it for the next opportunity.
- Employers should also very carefully analyze if there are any significant issues with the PERM – at the time the initial EB-2 I-140 was filed and subsequently. Specifically, making sure that the prior I-140 was properly filed and approved is key – the worst result would be USCIS finding a reason to invalidate the prior EB-2 I-140 (for example, due to mistaken approval, missing documents, etc.). Also, employers should be able to demonstrate ability to pay the PERM offered wage for the entire period going back to the priority date – for an EB-3 I-140 downgrade this means several years of tax returns, financials and pay records will have to be carefully analyzed and prepared.
My EB-2 is approved for a higher job (Systems Manager). My EB-3 is approved for a lower job (Software Developer) for the same employer. Can I file I-485 based upon the lower job?
Yes, if you honestly intend to take a step down and the employer is willing to let you. You can choose to step down now or any time later till and soon after the green card approval. This is based upon your honest intention. So, you do not have to step down, as long as you are willing to do so. Interestingly, once I-485 has been pending for 180 days, you can, within EB-3 category, take or continue at the job of a manager again. You will have to file a Supplement J in the EB-3 case proving how the Manager job is similar to, and only a promotion from Software developer. You can also choose to convert back to EB-2 if those dates are current and moving faster.
What is the cost?
Depends on the attorney. Some lawyers can charge $10,000 legal fees and USCIS fees is about $3,200 for two member household (break-up is I-485 $1,225 per person, I-140 $700)
What documents are required for the EB-3 I-140 downgrade petition?
- Tax transcripts
- Birth Certificate
- Academic Transcripts
- 6 passport photos
- Proof that you and spouse are enrolled in a health plan
- Most recent pay stubs
- To avoid public charge produce documents of assets and liabilities
What will be the preferred EAD to use for the spouse: H4 or I -485?
Answer here: https://bit.ly/34DJiPz
Can we travel on Advance Parole and what happens to H-1B if we travel?
Answer here: https://bit.ly/35LRcpt
Traveling on. Applying Advance for Advance Parole
I have a valid L1A (or L-2, H-1B. H-4, etc.) visa till March 2022. If I get my Advance parole approved, will my Visa be cancelled? No.
Is it a good idea to apply for Advance parole now when I have a valid visa for another 16 months from now? Yes.
Will I be able to travel to India before I get my advance parole approved, I have travel plans in 4- 6 months? Wait until you return to the US and then apply for AP.
If I can't travel to India while advance parole is in process, is it a good idea to hold on my advance parole applications as I have a valid visa and apply for it after a year or so? You should wait.
How long will the green card process take?
Answer here: https://bit.ly/2HM78zr
Should I keep my H-4 EAD or apply for I-485 EAD?
Go with the I-485 EAD. It is a better option. For instance, you have a 180 days grace period to continue working after EAD expiration, if an extension was filed in time. You have no grace period in H-4 EAD.For now, until the I-485 EAD arrives, you can continue using the H4 EAD. Make sure your spouse maintains their H-1B status.
The final verdict: If your company is paying for this downgrade then this is a no brainer. If you have to pay it out of pocket then this is a very expensive affair. I some how feel, every EB-2 applicant is going to rush in to this which might lead to a crowd in EB-3. You really need to think about it thoroughly.