The much anticipated October 2020 Visa Bulletin brought some bad news for those in the family-based categories but provided a silver lining for petitioners in the employment-based categories. We’ve received many calls from from India of people who have EB-2 petitions and are considering downgrading to an EB-3 due to the final action date moving past the EB-2. It’s rare for the EB-3 to be a faster route to a visa than the EB-2, so it’s important to know how to navigate the EB-3 India downgrade strategy along with the potential pitfalls you might want to avoid in the process. These questions will give you a good start.

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Why Did the EB-3 Category for India Jump Ahead of the EB-2 category?

A couple of variables created the situation where EB-3 India dates moved past the EB-2 dates with the pandemic being the driving factor.

Once the pandemic struck across the world, embassies and consulates closed adding to a delay in processing family-based visa petitions. Without an embassy or consulate to go to, interviews were not held. There was no movement from September to October in the family-based visa categories. When you add this to the visa bans instituted by the federal government it then creates a massive backlog in certain visa categories.

Normally a backlog wouldn’t have any effect on other categories. However, October is the beginning of the fiscal year, and with so many visas unclaimed they were then moved to the employment-based categories. There is an all-time-high annual limit of 261,500 visas for the 2021 fiscal year.

The other factor in the jump of the EB-3 category is the increasing demand for the EB-2 from India. The demand was so great with the EB-2 and weak for the EB-3. The EB-2 generally has a shorter wait time than the EB-3 because the requirements are more stringent. However, that demand reached a point where not many people were applying for the EB-3 and that presented the opportunity for it to leapfrog the EB-2. Today, the EB-3 filing date is January 1, 2015 which is four years and eight months ahead of the EB-2 filing date of May 15, 2011.

What Are The Differences Between EB-2 and EB-3?

The EB-2 and EB-3 are employment-based visas that are similar but with small differences that can make their wait times different.

Foreign workers with the following criteria can apply for an EB-2 visa:

  • Have a master’s or doctorate degree or a bachelor’s degree with five years experience in the field with a job offer
  • Working in art, business, or science and have a specialized degree in the field with a job offer

The EB-3 is less stringent because it does not require the master’s or doctorate’s degrees and not requiring specialized knowledge.

What Does the EB-3 Downgrade Process Look Like?

Your employee sponsor needs to file a new I-140, Petition for Alien Worker, and can reuse the PERM Labor Certification used for the EB-2. Make sure to submit the I-140, Perm Labor Certification, and I-485 Adjustment of Status at the same time to take advantage of the timing.

If you want to speed up the process you’d usually apply for premium processing. However, you usually can’t get premium processing without the original PERM Labor Certification In this case, you can apply for premium processing after you receive the receipt of notice from submitting the forms. It can take between one or two weeks to process the new I-140 and the I-485.

What Are the EB-2 to EB-3 India Downgrade Risks?

There are always risks when filing a new I-140 as human error can occur. In addition, there is no guarantee for how long the EB-3 priority date will be ahead of the EB-2’s date. That’s why it is imperative to file quickly and file all forms concurrently in order to take advantage of the timing.

Although not a risk, you will have to pay for new fees if you do go through with downgrading. you must pay for the new I-140, attorney fees, premium processing, and I-485. you will also have to see if your employer is comfortable with the strategy as they are the ones who employ the immigration attorney.

What Date Should I Follow? The Filing Date or the Final Action Date?

When looking at the visa bulletin, typically you would look at the final action date to see if it matches or is passed your priority date, and at that point, you would file your I-485. However, this month USCIS has issued guidance to look at the filing date. Although not common, USCIS has directed before to take into consideration the filing date and not the final action date—most recently in March of this year. The filing date is more favorable for petitioners than the final action date. When USCIS changes the guidance it is usually due to there being more visas available than applicants.

Can I Downgrade to the EB-3 With a New Employer?

If you have a new employer, you can still downgrade but it will be more time consuming. With a new employer, you need a new PERM Labor Certification along with the I-140. In addition, you need new workforce verification letters, and proof of the wages your employer will be paying you. You may miss out on the window to take advantage of the downgrade.

What If My I-485 is Already Pending?

If you already have a pending I-485 then downgrading to an EB-3 might speed up the process if your priority date is already current. make sure to check the visa bulletin and speak to your immigration attorney before taking any action.

What Happens to My EB-2 Application If I Downgrade?

Your EB-2 remains valid until USCIS approves the new I-140 for the EB-3. They will then assume that as your main petition is the EB-3 because of the sooner cutoff date. If for some reason your EB-3 petition is denied, then you still have the EB-2 as a backup.

Has This Ever Happened Before?

In 2018, the EB-3 cutoff date for China advanced passed the EB-2 date and many downgraded to take advantage of the timing. Downgrading worked for a while until the demand grew so much for EB-3 that both the EB-2 and the EB-3 were at par. For those thinking of taking advantage and downgrading now, you should learn from this experience.

Were There Any Other Changes in Employment-Based Categories?

All employment-based categories saw massive jumps in the visa bulletin. While the EB-3 India downgrade strategy may not help for your specific case, this may be a good time to check in with your attorney to see how the jumps in priority date helped your petition and what options you have available to get your visa faster.

How VisaNation Law Group Can Help

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Although the EB-3 India downgrade strategy can be rewarding there is a lot of risks involved if you don't know what you're doing. VisaNation Law Group's employment-based immigration attorneys have decades of experience and can tailor the strategy to your specific case. If you're not already a client, schedule a consultation by filling out this contact form.