Should I shift from EB-2 to EB-3 for the October Visa Bulletin?

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

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

Please note that the visa bulletin states that the employment-based categories will continue to have rapid forward movement, which may make downgrading unnecessary.

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.
    • What does that mean? The requirements for EB-2 and EB-3 are different. The relevant minimum qualifications needed to support an EB-3 I-140 petition are the following:
      • Professional means a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions.
      • Therefore, an example of when an EB-2 would not qualify for an EB-3 filing is when the PERM supporting the approved EB-2 petition, only requests a Master’s degree and does not also require a BA plus five years of experience. The EB-3 petition will be filed as a new petition, but you must include evidence submitted for the EB-2 petition.
  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 (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.
  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.
  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 in November 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

Check out our document checklist and review the next steps for filing your I-485. When you’re ready to initiate your case, email us at info@challalaw.com to initiate your EB-2 to EB-3 case.