Should I shift from EB-2 to EB-3?

Requirements & Benefits of “Downgrading” Your EB-2 to EB-3

The October 2020 Visa Bulletin allowed EB-3 applicants with priority dates before January 1, 2015 to file their I-485 for permanent residence. EB-2 applicants were still backlogged, with priority dates before May 15, 2011 eligible to apply. This caused many people to ask: Should EB-2 applicants switch to the EB-3 category to save a few years in processing?

PROCESS: Converting an Approved EB-2 petition to an EB-3 petition

  1. We need to assess whether the PERM supporting the EB-2 petition is eligible for an EB-3 filing.
    • Were there any errors when the PERM was certified?
    • Are there any concerns for a downgrade filing, such as the company’s continued ability to pay?
    • Is the company still willing to offer you the role?
  2. The EB-3 petition will be filed as a new petition, but you must include evidence submitted for the EB-2 petition.
  3. If the EB-3 priority date is current (based on your approved EB-2 I-140 petition), then you can file an adjustment of status concurrently.

TIPS AND TRICKS TO CONSIDER

  1. Your EB-2 priority date is not lost. Where there are multiple approved petitions, (one for the EB-2 and another for the EB-3) the beneficiary retains the earliest priority date.
  2. The previous EB-2 petition remains valid, even if the EB-3 is denied, unless revoked for fraud, misrepresentation, or if it was approved in error.
  3. Your underlying nonimmigrant status remains valid, therefore, even if the EB-3 concurrently filed adjustment of status is denied, your status is not impacted. You can later refile the AOS once the EB-2 priority date becomes current.
  4. Third, the main benefit of the new EB-3 I-140 filing is the ability to concurrently file the adjustment of status. However, you must understand that the EB-2 and EB-3 categories dates keep moving forward, then retrogressing, and the USCIS each month decides whether the “Final Action Dates” chart will apply or the “Dates for Filing” chart. In the final analysis, you may not move through the process much faster, but you have the benefit of the pending AOS, which allows you to apply for advance parole and an EAD (employment authorization document).
  5. The permanent residence process is for prospective employment. Even if you are no longer working for the employer who sponsored your I-140 petition, as long as they did not revoke the petition and there is a bona fide continued offer of employment, the previous I-140 can be used to file your I-485. You should intend to work for the sponsoring employer when the green card is approved.

Remember, the visa number may retrogress so you want to make sure the adjustment of status and the conversion is filed consistent with the USCIS requirements, otherwise, if the petition is not filed properly, even if a signature is missing, it would be returned and you may miss this golden window.

H-1B/GREEN CARD TIP

Some individuals receive their Employment Authorization Document (EAD) as part of the green card application process and allow their H-1B visa to elapse. However, if processing delays occur or the worst-case scenario occurs, you receive a denial, it is beneficial to maintain the underlying H-1B validity until your green card is approved.

Still have questions? Review our Frequently Asked Questions on EB-2 to EB-3 porting.

Next Steps

When you’re ready to initiate your case, email us at info@challalaw.com to initiate your EB-2 to EB-3 downgrade case.