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EB-2 to EB-3 India Downgrade: Process, Steps, Cost, Pros and Cons

EB-2 to EB-3 Downgrade Process

The green card waiting times for family and employment-based categories have always been notorious for being long, with some cases taking decades to be processed. However, the most recent visa bulletin for October 2020 has stirred up things in the immigration world. With no movement in the family-based categories came an unprecedented opportunity for those applying for employment-based immigrant visas.

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Typically, the higher the preference level, the shorter the waiting time. However, each country is different, and heavily populated countries such as China and, in particular, India have always found themselves waiting the longest for their green cards. For this reason, it’s not necessarily uncommon for an EB-3 applicant to port their green card upward to an EB-2 in order to take advantage of the shorter wait time.

This recent change, coming right at the start of the new fiscal year and hard on the heels of sweeping immigration legislation and COVID-19, has created a unique situation in which it would take less time for an Indian applicant to receive an EB-3 than it would take to receive an EB-2. For this reason, many people want to know whether or not they can get an EB-2 to EB-3 downgrade.

A Background on Priority Dates

If you’re wondering why a lower priority level would have a shorter waiting period than a higher one, let’s break down how priority dates work. 

Each year, the Department of State (DOS) caps the number of employment- and family-based green cards that are issued to any particular country (or chargeability area). If a country has a significant number of its citizens apply for green cards each year, then it will have its own chargeability area. All other countries are grouped into the chargeability area of “other countries.”

When there are more applicants from a specific country for a particular green card category than there are visas available that year, then a backlog will begin to build up, and new applicants will have to wait their turn before receiving their visa numbers and being able to file their I-485 forms or go through consular processing.

The DOS handles this backlog by having your “turn” in line be designated by your priority date, which is the date that the USCIS receives your petition. Each month the DOS publishes a visa bulletin with a series of “final action dates,” one for each chargeability area and for each green card category. 

Applicants from chargeability areas with a backlog need to watch these published final action dates. Once the final action date in their category and chargeability area matches or passes their priority date, a visa number will become available and the applicant can move onto the final steps of the green card process. 

At that point, your priority date is considered “current.” If your chargeability area does not have a backlog, your priority date will automatically be considered current and you can move onto the next step as soon as your petition is approved.

Why Some Countries Have Longer Wait Times Than Others

However, this means that the amount of time you have to wait for your priority date to be current is dependent on how many people from your country apply each year. Therefore, applicants from heavily populated countries that regularly exceed their annual cap will need to wait longer than other countries as the backlog continues to build. Each time the limit is exceeded, the line gets longer and the final action dates are pushed backward. This is why Indian and Chinese applicants often find themselves waiting years for their priority dates to be current.

How an EB-2 to an EB-3 Downgrade of your Green Card Can Help

Knowing this, it should be obvious that the more difficult it is to qualify for a particular green card, the fewer applicants there will be—which should result in a shorter waiting time since the limit is being exceeded less often.

In the past, this has held true. The EB-3 is a relatively easy green card to qualify for in comparison to the EB-2. As an EB-3 applicant, all you need is a job offer with a U.S. employer that isn’t seasonal or temporary. However, you will need an advanced degree or “exceptional ability” in your field in order to qualify for an EB-2. So the final action dates for the EB-2 have historically been better than those for the EB-3.

In fact, the wait time for the EB-3 was so long, that some applicants could obtain the qualifications for an EB-2 (e.g. a master’s degree and a new job requiring that degree) and port their petition from an EB-3 to an EB-2. This would allow them to retain their original priority date (rather than starting a new one) and speed up their processing.

However, the process has been flipped for Indian applicants as of this new visa bulletin. Now, it is showing that the priority date for India in the EB-3 category is, as of October 2020, September 1, 2009, while the final action date for India in the EB-2 category is January 15, 2010. 

While this may not seem like a significant difference, the real advantage comes in the “dates for filing,” which are listed after the final action dates on the visa bulletin. Green card applicants that have a priority date that occurs before the date for filing for their chargeability area can file their I-485 forms to adjust their status earlier than their final action dates. Therefore, the date you see listed in the “Dates for Filing” section is the priority date of the first applicant that cannot file their I-485 yet.

This is significant because of the difference between the EB-2 and EB-3 dates for filing for India. The EB-2 category is stuck on May 15, 2011, while the EB-3 has jumped to January 1, 2015. This means that Indian EB-3 applicants will get their green cards three and a half years before their EB-2 counterparts. For this reason, those applying for an EB-2 may want to consider an EB-2 to EB-3 downgrade to save themselves several years of waiting.

EB-2 to EB-3 India Downgrade Step-by-Step Process

Assuming you still work for the same employer that sponsored your EB-2 petition previously, here’s the detailed step-by-step process outlining all the required forms, timeline and possible outcomes:

  1. Prepare and submit an I-140 package requesting EB3 classification using the
    previously certified PERM that was used for the EB2. In many cases, PERM
    Labor Certifications (certified ETA 9089s), which have been used in support of
    an EB-2 petition, can be used to support an EB-3 petition by the same employer
    and for the same position.  USCIS permits the usage of a prior PERM Labor
    Certification if it was used to support a previously filed I-140 while the ETA 9089
    was still valid. A new PERM is not needed as it is with the same employer.
  2. The I-140 petition has to be submitted with a copy of the previously certified ETA
    9089 and proof that the Applicant/Beneficiary meets the minimum requirements
    of the position as listed in the certified ETA 9089. Additionally, the employer has
    to submit evidence to prove their ability to pay the proffered wage from the
    priority date. This is done by providing copies of employer’s last 2-3 Federal Tax
    returns, financial records as well as Beneficiary’s W2s and pay stubs.
  3. If the filing date for EB3 is current, the I-485/I-765 and I-131 applications can be
    filed concurrently with the I-140 requesting the EB3 classification since once its
    approved, it will be assigned the original priority date of the EB2 I-140. This will
    enable the Applicant and his/her qualifying dependents to receive EADs and
    Advance Parole documents while the I-485 is pending. Concurrent filing is
    recommended as the dates on the visa bulletin can retrogress at any time.
  4. A premium-processing request may be submitted to USCIS once a receipt notice
    for the I-140 has been received, as USCIS needs to retrieve a copy of the original
    certified ETA 9089 from the previously approved EB2 I-140 file.
  5. If USCIS accepts the premium upgrade, it will adjudicate the I-140 within 15
    business days of when it starts the premium processing clock. If it does not accept
    the request for premium then it will take 4-5 months to adjudicate the I-140
    downgrade.

Unfortunately, changing from one preference level to the next isn’t as simple as checking a different box. You may need to start a new case over from scratch starting with the PERM Labor Certification process and continuing on to filing a new I-140 petition. However, you may be able to use the previous PERM as long as the job requirements, location, and wages have not changed. The real difference is that the priority date from your original petition will be retained for your new petition. 

Therefore, because this is a completely new case, you will need to assemble the appropriate supporting documents showing that you qualify for the EB-3 just as you did the EB-2. Fortunately, downgrading is much easier to do that upgrading, as those that qualify for an EB-2 more than likely qualify for an EB-2, since all you need is a non-seasonal job with a U.S. employer. Unless you were applying for a National Interest Waiver with your EB-2, you should have little difficulty in proving that you qualify for an EB-3.

The first step would be to reach out to your employer and have them file another I-140 on your behalf. If a new PERM is needed, it will take several months at least. Be sure to have the employer designate that you want the original priority date to be retained, otherwise your priority date will start over when the USCIS receives your new I-140. If you’ve already waited several years for your EB-2, this can be devastating.

Here is an example:

Purna is an Indian software engineer with a master’s degree in computer science whose employer submitted an I-140 for an EB-2 in May of 2013. If he continues on the EB-2 track, he will need to wait at least another two years before his date for filing becomes current. However, because he has a full-time job offer with a U.S. employer, he also qualifies for an EB-3. Therefore, Purna reaches out to his employer, who acquires files a new I-140 petition in September of 2020. Because his employer indicated that they wanted to retain the original EB-2 priority date (May 2012), then that becomes the priority date of the new EB-3 petition (rather than (September 2020). Since the EB-3 date for filing for India is January 1, 2015, which is after his original retained priority date, Purna’s priority date will instantly become current and he can file an I-485 as soon as the I-140 is approved, shortening his waiting time by two years.

At the end of the day, the type of green card does not change the benefits. All green cards, regardless of their requirements, result in legal permanent residence for the holder. Though some are conditional and are initially only valid for two years, the rest are valid for ten years at a time and only need to be renewed, meaning that you do not need to re-qualify for them. Therefore, downgrading from an EB-2 to and EB-3 does not deprive you of any green card benefits you would have otherwise received.

How Our Immigration Attorneys Can Help

Being able to expedite your green card process be several years can be a game-changer for many immigrants and their families that are patiently waiting to acquire their green cards. However, like most immigration processes, getting an EB-2 to EB-3 downgrade is easier said than done and should only be done with the help of an immigration attorney. This way, you can be sure that you are avoiding any easy-to-make but crucial mistakes such as not retaining your priority date that can set you back several years.

Here at our law firm, we take pride in helping green card applicants use the process to their advantage so that they can start living and working in the U.S. as soon as possible. If you would like to speak with one of our attorneys about EB-2 to EB-3 porting, you can schedule a consultation with our firm by filling out this contact form.