Couple of queries after EB2 to EB3 downgrade

USA
1

I had got SSN for my child after EB2 to EB3 downgrade and my intention is not to use it to keep my option open for EB2 once my PD (5 Aug 2014) gets current for action as I see EB2 is now progressing faster. However I have following 2 confusion where I am looking for your advice -

  1. While filing Tax I got to know my child’s ITIN is expired and I was told to do paper filing to renew it for my child, however last month my child had got SSN as result of EB2 to EB3 downgrade, if I use that SSN for tax filing purpose I think I will also get Tax benefit, so worried if using that will impact of keeping my EB2 option open?

  2. My wife is currently working using H4 EAD which will expire in Nov 2022, I have initiated my H1b/H4 renewal process and as soon as I get receipt number I will apply for H4EAD renewal as well, however if by any chance I am not able to get H4EAD renewed before current expiry then I think she will have to use her EAD which she got as result of EB3 downgrade as this time she doesn’t want to lose job like she had to in previous delays in approvals for H4 EAD. Will that as well impact my ability to use EB2? Also do you think interfiling will still be possible even if EAD is used from EB2 to EB3 downgrade?

Thanks as always for your help.
Kumar

2

SSN has nothing to do with your GC processing, so chill!

No issues using EB3 EAD for job and yes you should be able to interfile too.

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3

Thanks a lot, so just to confirm I can still do interfile once my PD date for EB2 gets current for Aug 2014 even if I used EAD which I had got as a result for EB3 downgrade? I was thinking that EB2 is not usable if EAD in EB3 is used and was suggested to keep my H1 and for dependents H4 status. Can you please guide if that is not correct?

4

Who suggested you that EB2 is not usable?

You should give some background and references as open ended questions are not helping anyone.

If you got some guidance from an attorney, you should quote them with questions.

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5

Thanks Anil for reply. I was reading through EB2 to EB3 Downgrade Process, Risks (Premium, Cover Letter) - USA, and was calling out basis of section risks of EB2 to EB3 downgrade, where its suggested to not use EB3 EAD and further says that to interfile I need to have a valid H1 status for interfiling and if EB3 EAD is used then I wont be able to provide underlying status. I might be missing or must have misunderstood here, but looking for help to understand it better. Thanks again.

6

There are more options provided here (do check out):

I know a person firsthand who did use his EB3 EAD and then filed EB2 GC when it got current and got his GC.
So, the attorneys guide based on their experience and knowledge base. I do not believe that once you use the EB3 EAD, you are locked into it but many attorneys suggest this way.

So, it is up to you or you may want to take a second opinion from any other attorney.

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7

This helps, thanks Anil. Wonderful forum.

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8

Totally agree! Attorneys also have different opinions when it comes to filing a new I-485 in EB2 (rather than interfile) when AOS applicants are already using EB3 EAD (though the EAD has no differentiation between EB2 or EB3 and not category specific, it’s just AOS EAD). Some attorneys say you can file new I-485 even if you have used EAD, while others say you need to be in a non-immigrant status to be able to file AOS.

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9

Right. This has been the biggest confusion.

The problem is that there is no official guidance from USCIS either. So, it all depends on the individual attorney’s interpretation.

I spoke to many people and some of them did use their EAD and later got GC through another category. So, I believe there is no issue.

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