EB2 to EB3 Downgrade Process, Risks (Premium, Cover Letter)

Originally published at: EB2 to EB3 Downgrade Process, Risks (Premium, Cover Letter) - USA

Your current employer with approved I-140 (from EB-2) with a priority date that is current in EB-3, can downgrade your case using the same EB2 PERM and file a new I140 with the EB3 category. There is no need to file a new PERM for downgrading from EB2 to EB3. EB2 PERM can be used…

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Hi Anil,
In the below article you mentioned we need to file perm even if we are working for the same employer in Merge scenario - amended i-140 after merger/acquisition.
I read somewhere, perm not required if it is the successor of interest(only i140 amendment is required)

So when we downgrade from EB2 to EB3 no need for perm right? Can you please confirm?

Can I file 485 under EB3 if EB2 is approved, but only EB3 is current? - YouTube.

Hi @karthik_reddy

‘Successor of interest’ is an exception. You may not need a new PERM for this exception.

Hey Anil,
Thanks for all this work you are doing.

Can an newly approved EB-2 PERM be used to file i-140 applications for both EB-2 & EB-3?

Thanks,

You should be able to file both EB2 and EB3 i140 at same time as far as i know.

Talk to your attorney and see if they are comfortable filing both simultaneously.

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I am working at location A with Employer A and my I140 is approved for 6 years. I will be moving to a location B. Should I need to file a new PERM and i140 because of location change?

You will require a new PERM and i140 if you intend to file i485 from location B. Basically, if your GC job has moved to location B, then it needs a new i140.

You can move back to location A at the time of GC if you don’t want to file another PERM and i140.

Hello All,
Looking for some visa-processing literacy here.

My AOS/EAD/AP application was submitted recently because my EB-2 priority date (PD) became current in EB-3 date of filing (DF). Along with these, my I-140 application for EB3 (“downgrade”) was also submitted.

From what I understand:
– USCIS will process all these applications in parallel.
– Decision on EAD/AP and scheduling of biometrics can be done without waiting for a decision on I-485.

I wanted to know:
Q1.a) When will I-485 will be picked up for processing ? Is that when my priority PD becomes current for final action date (FAD) in this category?
Q1.b) Also, is that when an interview is also scheduled (if required)?
Q2) Will my I-140 have to be approved before I-485 can be processed?

I am asking these questions, because I’m trying to ascertain is there any benefit to file for a premium processing of this new I-140? If the wait for I-485 to be picked up from the wait queue is large enough, what’s the rush to get I-140 processed now? FWIW, the difference between PD and current FAD is ~4.5years.

Looking forward to your reply. Thanks!

The i-485 can only be approved if your Final Action date is current.

485 interview can be scheduled and completed anytime in preparation for your 485 approval. USCIS usually tries to finish all formalities in anticipation that the date will be current in the next 12 months.

i-140 should be approved to get i-485 approval as it is an employment-based petition.

Hello Anil, Below is my scenario.

  • Filed my I-140 in EB3 with PD Aug 2010 with Company A
  • Filed I-140 in EB2 in 2016 and Ported PD of Aug 2010 with the same Company A
  • My attorney has filed my I -485 in EB2 on OCT 30, 2020 using Dates for Filing dates,

Based on the trend, it seems like EB3 may hit my PD sooner than EB2 and if EB3 dates become current then what are my options to use the current PD in EB3.

Truly appreciate your help as both the petitions are with the same company and none of them have been revoked

@anil_am22

My PD is Sep/22/2016 when can i expect to be current on both EB2 & EB3 India please?

Also, the EB2 to EB3 downgrade calculator gives me this result. “We suggest to wait and stay in EB2 queue. Chances of getting current are EXTREMELY low by Mar, 2024” does this mean after Mar/2024 my PD can become current under EB2 or EB3 India?

The app calculation means that there is no need to file EB3 downgrade at this time as your date may not get current until at least Mar 2024.

The estimates change every month with nee visa bulletin and you can come back and check the app next month for new estimate.

It does not mean that date will get current after Mar 2024 immediately.

Hi Anil,

I have a PD of April 2015(EB2), and hope that it becomes current in Filing dates chart for October 2021.

I am in the process of being promoted in my organization from position A to position B, and the duties definitely match 50%, and my attorney mentioned that if we have duties match 50%, then we do not need to file new PERM and I140,but can port these onto my new position.I am concerned what if they say that duties do not match 50% and thats when things might get complicated,.

1)I did get in touch with Attorney on downgrading from EB2 to EB3 in October 2021, and they mentioned that we can downgrade using my existing position A PERM if dates are to become current in october 2021 , and wait till I-485 is 180 days old to file porting it over to position B.

My question is,does this mean that I will still be able to obtain EAD,AP if position porting(without new PERM and 140- job duties matching 50%) happens ?

Second question is, does this mean that I will still be able to obtain EAD,AP if we are to file new PERM and 140 for position B (since duties did not match 50%),after my previous I485 is 180 days old,do we need to file anything else here? I am concerned if we are to file a new I485 since it is a new position, and what if dates are not current any longer.

Thank you!

The new position should be in same or similar work area even if you file i485J after waiting for 180 days of i485 filing.

The 50% is a generic guidance that most attorneys follow to judge if the new position is in same or similar work area.

@Jeeya21

Unfortunately, the retrogression of the visa bulletin means that your priority date is no longer current and it is not possible to file your I-485 based on older bulletins. Once your date becomes current again, you can file your I-485 (if with new employer, then you need approved I-140)

@pr84 FYI

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Hi Anil,

What is the impact on approved eb2 if downgrade petition is denied for ability to pay issue?

Its a serious issue and USCIS can reopen your EB2 case if the USCIS officer wants and issue a notice of intent to deny (NOID).

Can I use my PD, if USCIS revokes my EB2?

My daughter will turn 21 on March 15, 2023. My priority date is May 10, 2012, in EB-2 India category. I wanted to learn the community’s opinion if I should downgrade my application to EB-3 in October 2021 or stay in the EB-2 queue. What are the advantages/disadvantages of downgrading to EB-3?

My I-140 was processed within 15 days so that will not add any extra time to the CSPA Calculation.

Thank you for your help!

Your PD of May 2012 should be current in July or August VB in EB3. I would downgrade to EB3 if I were you. You should have done this last October.

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