I485 Interfiling in the case of EB2 I140 amended to EB3

Hello friends,

My Attorney amended my EB2-I140 to EB3 instead of filing a new EB3 when filing the I485 in Oct 2020. My EB3-I140 was subsequently approved. I am not getting clear answers from my Attorney. I realize forum answers are not legal advice but any input is appreciated.

  1. Does this mean I no longer have a EB2-140?
  2. At present, my PD is current in EB2 but not current in EB3. I have heard that USCIS automatically grants GC if the PD is current in EB2 even though I485 was filed in EB3. Is it still possible that USCIS can adjudicate my GC in EB2 or does the fact that my EB3 I140 filed as an amendment mean that I stand no chance for a GC in EB2 as I have lost my EB2-140?
  3. If I want to interfile in EB2, do I need refile a new EB2-140?
  4. Between an interfile to EB2 vs a new EB2 I1485 filing, which is preferred?

Much thanks!

If the EB2 I-140 was amended and downgraded to EB3, yes the EB2 I-140 do not exist anymore.

My understanding is USCIS may only approve in EB2 if your EB2 I-140 still exists. This could have been the situation if your attorney had filed a new EB3 I-140 using EB2 PERM.

Interfile can only be done if EB2 I-140 is still valid. Your employer can file a new EB2 I-140 using old EB2 PERM. You may be able to upgrade the I-140 to premium processing after 30 days of receipt notice.
Once approved you can interfile in EB2.

2 Likes

Thanks Kalpesh for the input!

You mentioned “Your employer can file a new EB2-I-140 using OLD PERM ” Do you have USCIS link about this?
Also, my EB3 amendment downgrade is still pending, my employer’s attorney does not agree to do premium by showing the following text from the USCIS website. They need a USCIS link to file any premium. Is there any official USCIS link that tells the premium can be applied after 30 days?