EB3 downgrade now vs wait on EB2 until EB3 to become current (PD Oct 2009) then to apply in EB3

Hi , My PD is Oct 28, 2009 (EB2 category). I missed the boat last time to file I485. I am with the original employer who sponsored by GC.

It is similar case as per earlier posting except that my case is late by few months. So using the same question as asked by other user. i.e.

"Reading your earlier responses to others, am I right in assuming that EB2 to EB3 downgrade is a good option for me – given that interfiling can be used to protect against EB2 advancing faster / EB3 retrogressing scenario?

I.e., Does the downgrade allow for 2 different I-140 petitions be available for my I-485 to be linked to, therefore improving my chance to expedite GC approval?"

Or is it advisable to wait until EB3 to become current and then apply downgrade and I485 together?

My suggestion is to wait for your EB2 priority date to get currrent in EB3 and then file both EB3 i140 and i485 concurrently.

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Thank you Anil. I appreciate your response. Your response makes sense to me as that could justify the downgrade at the right time, I still have below questions. Please reply.

Quick questions around this.

  1. What is interfiling to apply EB3 from EB2? (instead of downgrade)
    If this is not applicable for me, why? I hear many are applying, but I don’t know how their case is different from mine.

  2. If interfiling or downgrade is successful to I140 EB3 , then I would have I485 applied, and EAD applied/approved with AP for travel in few months. That seems to be better case for me.
    And in few months, I may have both I140 approved on EB3 (new) and EB2 (existing), so based on whenever my PD gets current (either EB3 or EB2), I can apply either one of it, that would be better case for me.

Is my understand wrong?

  1. Is it risk in general to downgrade/upgrade or interfiling (by the way I am still yet to understand what is interfiling)?

It is your choice if you want to use interfiling.
Talk to your employer and if they are ready to spend money, you can go ahead.

Each step that you take will add complexity and your attorney may or may not agree to it.

The interfiling option is available but its not as straightforward as you may think.

If it was so easy, each one would have opted for it and will jump to and fro from EB2 to EB3 and vice versa.

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Thank you Anil. Btw, could you please explain what is interfiling?

Lets say if we do just downgrade (no interfiling) and move on with just filing I485 and EAD? what are the risks that I have?

Interfiling is replacing the underlying i140 for a pending i485.

Example: if you have already filed your EB2 i485 and it is currently pending but EB2 final action date is not currrent.
Assume if your priority date gets current in EB3, then you can replace EB2 i140 with EB3 i140 using interfiling concept and get i485 approval.

I do not understand your second question.

Thank yo Anil. It helps lot.

My second question is if I go ahead and apply EB3 I140 and I485 (with advance filing for EB3 is 01APR10) My PD is Oct 2009, and also apply EAD along with that, I am assuming to get EAD in few months (Hoping premium processing is done at same processing centre etc.). That will be a better situation than waiting for EB2 or EB3 to become current. Is that correct or its are there any risk? considering my current job situation.

Once I have EB3 EAD, and will wait for EB3 to become current (most likely scenario) to receive GC, or if EB2 became current and EB3 went back ( I dont think so, based on current trend) but I still will have fair choice of doing interfiling to go back to EB2 to receive. Please confirm if my understanding is correct.

You are looking at the ‘Dates of filing’ chart which was available for filing only till Jan 2019.

If you did not file your EB3 i140 + i485 by Jan 2019, you have missed the bus.

You need wait until USCIS opens the ‘Dates of Filing’ chart again for use.

Hi Anil,
Ahh. I misunderstood and the attorney did not explain this correctly to me then. I am looking April edition of visa bulletin. I see this date of April 2010, for EB3 for “dates of filing”. Cant I apply EB3 as my PD is Oct 2009?

And also, it opened in Jan 2019, I agree that. But the recent bulletins has still future dates, so why not this is applicable and usable for me. Thanks

Looks like you have not understood it yet.

I clearly said that USCIS tells which chart is available for use each month in their visa bulletin:

If ‘Date of filing’ chart is open for use, USCIS will clearly mention it on the link that i gave above.

Got it thanks.

Its very tricky as the chart inside the bulletin was the one I was referring.

Any thoughts, on when the “Date of filing” chart will be open for use, as EB3 is getting advanced, that I can apply without missing the bus next time…to file EB3 I140 and I485.

Much appreciate your clarification.

I do not have any idea yet about when it will open again.

I will update it here as soon as it opens again:

Hi Anil…my PD is EB2 may20 2009. I have a pending EAD and I just received an approval for an EB3 i140 petition. My lawyers are planning on interfiling as soon as they receive the physical approval notice next week. Is there any recent data on how long interfiling is taking nowadays?

Hi @jvasanth
I do not have data about interfiling timing but it should be quick.

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