EB2 to EB3 downgrade - File as "NEW" vs "AMEND"

Regarding the downgrading of the EB-2 cases to EB-3, there are two approaches as follows:

(1)Amend the existing I-140 to downgrade it to EB-3. This would effectively replace the approved I-140 to an EB-3 I-140 and the EB-2 I-140 would no longer be useable.

(2)File a new I-140 in the EB-3 category. This would preserve the EB-2 I-140 and the beneficiary would have both an EB-2 and EB-3 I-140. This is the preferred method in case EB-3 would retrogress and EB-2 advances ahead of EB-3.

Per my lawyer - since few days other lawyers have been reporting that USCIS is denying petitions that are filing in the “new” category even though many including my lawyers office have successfully filed as new petitions. Given the uncertainty, our lawyers advice is that we file the petition as an amended petition to EB-3 as we have the support of the Neufeld memo. If, in the future, EB-2 advances ahead, then an amended petition can be filed for EB-2. It would involve additional legal and filing fees but this seems the most prudent approach given the apparent position of USCIS at the moment.

Anyone heard of similar argument or recommendation recently.? any thoughts? Please share

Checkout forum on this

My attorney said the same thing. Up until 2 days ago the plan was to file a new i140 in EB3 but now they said that based on recent info they got, they are advising to go with amendment. I am leaning towards their advice as I don’t want to take a chance

File EB2 i140 amendment or EB3 i140 downgrade?

Our suggestions:

  1. File EB2 to EB3 Downgrade (Recommended): Many people are still filing the new EB3 i140 using EB2 PERM. It’s a legal process and the Chinese have been doing it since 2007. There is no legal basis to reject EB3 downgrade as you can hold multiple i140 at the same time.

  2. EB2 Amendment to get EB3 i140: Note that if you file an EB2 i-140 amendment, then you will need to redo the whole EB2 i140 process in the future if you want to go back. It’s basically useless as the EB2 and EB3 dates are bound to keep chasing each other.

Ask these questions to Yourself

If you file an EB2 to EB3 amendment instead of a new EB3.

What will you do if EB3 retrogresses in Nov/Dec 2020 or Jan 2021 and EB2 moves forward?

– Will you file another amendment to jump back to EB2?
– How many times can you do that in the next 3 years? Every two months?
– Can you afford it? It costs about $6k for a family of 3 to file.
– Will your employer be ready to file another EB2 i140? Its not as easy as it sounds.

This is a see-saw game from now onwards between EB2 and EB3. It will happen every month.

So, you decide where you want to put your money.

Is USCIS rejecting EB3 Downgrades?

Several attorneys have emailed their clients and employers to be aware of the risk that this possesses even though it can be challenged in court if USCIS refuses the application simply because it was not filed as EB2 i140 amendment.

This is the standard approach that has been used by lawyers since 2007 for Chinese EB2 to EB3 downgrades and it’s not a new process at all.

This seems like rejection by the mailroom team. Immigration Attorney Rahul Reddy has suggested that we add a cover letter asking USCIS mailroom to first show the package to their supervisor before rejecting it straightway.

Risks & Disadvantages

If USCIS changes its long-standing interpretation of immigration policy, USCIS could reject the I-140 and AOS filings. USCIS could also accept the filing and deny the I-140 and AOS, which would result in the loss of all the filing fees.

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More information:

Hi Santosh,
I got similar email from our attorney. Can you please advise if you are applying I140 as Amendment or New. Do you know if applying I140 as Amendment is risky and might reopen the Existing EB2 Application.

I would say, if attorney says then they are trying to avoid risk but still you want to take risk then you should be okay to bare the lose also, either it will impact to your extension or it get cancelled your any of PERM/petition.

Now, you think, what do you want? It’s your call. Attorneys will try to be in safe position, either GC comes after a year or two year instead of the worst situation. If I give my personal opinion then follow your attorney and employer, and don’t go for downgrade.