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

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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.

EB2 to EB3 Suggestion tool and Tracker

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