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