Greetings
My wife she is a teacher her I-140 was under filed under EB2, and the priority date is May 25th, 2011. She did a downgrade EB3 in October 2020. Now her final action date under EB2 is current. Does she need interfiling to convert into EB2 since his EB3 I-140 is not approved? Also, when she filed I-140 in 2011, her employer was Marion County School District 7, which later consolidated as Marion County School District, and she still is working in the same school. Is this considered as a change of employer? Please let us know or advise in this regard.
My lawyer saying eb2 I140 is not valid and we need to go for eb3 downgrade amendment. We are confused. Please advise what I need to do now?
My lawyer responded like this
Hello Selma,
My apologies. Although you selected New petition, we had to file your petition as an amended petition because the employer that originally filed your I-140, Marion School District Seven, is no longer in operation and your current employer, Marion County School District, is the Successor In Interest (SII). In order to file your I-485 petition in October 2020, we had to simultaneously file the Amendment of the I-140 to reflect the new employer and the request for the EB-3 downgrade.
However, in July, as both EB-3 and EB-2 are current in Final Action, you can file your daughter’s AOS under the EB-3 classification.
Once the EB-3 SII I-140 petition is approved, your current employer (Marion County School District) can file another (New) I-140 requesting the EB-2 classification.
Please confirm your receipt and understanding of this email and inform us how you would like to proceed.
When an employer is merged or purchased by another company in its entirety, the new company is called the Successor-In-Interest. This means that a new employer steps in the position of the original employer to continue the green card petition of its employees because the new employer assumes the entire ownership and liability of the original employer.
So the above situation is considered different from a typical Change of Employer where you leave employer A and join employer B.
This could be due to the fact that Successor-in-interest can take over the I-140 and GC process without the need to file a new PERM (if same job & location) however if the Successor-In-Interest does a EB2 to EB3 downgrade using a ‘New’ EB3 petition (in which case I-140 for EB2 still remains valid), they may be liable to do PERM process again. Instead if they do EB2 to EB3 downgrade using ‘Amendment’ to existing EB2 I-140 they can use EB2 PERM which means no need for a new PERM.
So in your wife’s case the attorney have filed EB2 to EB3 downgrade in October last year using ‘Amendment’ process and they are thinking that your EB2 I-140 can’t be used anymore for interfiling? I am not really sure about this. My understanding is that when doing downgrade using ‘Amendment’ process, the EB2 I-140 is valid till EB3 I-140 is approved.
Your attorney can confirm if you can still do interfiling and withdraw the EB2 to EB3 downgrade. Just discuss with them and see if you have this option available.
Any reason why you didn’t request premium processing for the EB3 I140?
I don’t understand why you would file for EB2 after your EB3 downgrade is approved as your PD is current in EB3. There is no need to file for EB2 unless the dates retrogress in EB3 but remains current in EB2 and there is almost a no chance of retrogress in near futurr.
This is contradicting to what your attorney’s email say.
If it is New I140 for EB3 and not Amendment to your EB2 I140 then your attorney should be able to use your EB2 I140 for interfiling.
Please consult with your attorney.
Hello
Please note as previously discussed with Attorney, the current I-140 downgrade/successor in interest cannot be Interfiled. The I-140 must continue to pend and be adjudicated by USCIS.
The EB-3 is current in the Final Action Chart this month and we are filing your daughter’s AOS based on the current EB-3 pending Downgrade/Successor in Interest - I-140.