FAQs ON FILING A “DOWNGRADE” EB-3 I-140 PETITION
Background: On 9/24/2020, the October Visa Bulletin came out and showed a significant movement on many family- and employment-based categories. This FAQ focuses on the significant difference between EB-2 and EB-3 categories under the “Date for Filing” chart, especially for individuals who were born in India:
EB-2: 15 May 2011
EB-3: 01 Jan 2015
What is the difference between the “Dates for Filing” chart and “Final Action Dates” chart?
The “Final Action Dates” chart indicates that one’s priority date is actually current, and an immigrant visa is available. The “Dates for Filing” chart only indicates when a person may file an I-485 application. An immigrant visa is not available to that person.
Can someone use either the “Final Action Dates” chart or “Dates for Filing” chart?
Depends. The Department of States publishes the “Visa Bulletin”. However, it is up to USCIS whether to use the “Final Action Dates” or “Dates for Filing” chart. USCIS publishes which chart they will use to allow people to file I-485 applications. A person whose priority date is current under the “Dates for Filing” chart must still check whether USCIS will allow the filing of I-485. As of the time this FAQ is written, USCIS is allowing the use of the “Dates for Filing” chart for October 2020.
What is downgrading an I-140 from EB-2 to EB-3?
If you have an approved I-140 petition based on an approved PERM in the EB-2 category, and if you are still with the same employer, it is possible for your employer to file another I-140 petition under the EB-3 category. When approved, you will have an I-140 petition in both the EB-2 and EB-3 category. You can then use it to submit the I-485 application under either category when your priority date becomes current.
Do I lose the approved EB-2 petition if I submit a downgrade I-140 petition to EB-3?
Usually Not. USCIS typically just adjudicates the EB-3 I-140 petition independently. USCIS does not usually revoke any approved I-140 unless there is fraud, or if the employer seeks to revoke it.
I have an NIW in EB-2, can I downgrade it to EB-3?
Unfortunately, no. You are locked in EB-2 under NIW, because your NIW is a stand-alone petition, and there is not an underlying approved PERM to support a downgrade I-140.
I am no longer with the employer who filed the EB-2 I-140, can I still file a downgrade I-140 EB-3 petition?
Unfortunately, No. The downgrade I-140 has to be based on a valid PERM from a valid employer. Because you do not work for the employer who had filed the underlying PERM, you cannot submit a downgrade I-140. Your current employer will need to file a new PERM, and when it is approved, you may then file an I-140 under EB-3.
I already have a pending I-485 under EB-2, but my priority date is not current. Can I still file a downgrade petition request to make my priority date current?
Depends. If you are with the same employer who filed the PERM and the I-140, then the answer is Yes. However, if you have changed employer or ported your I-485, you cannot. You will have to first obtain a PERM and an I-140. Then, you may notify USCIS of your decision to downgrade.
Should I file a downgrade EB-3 I-140?
That is really hard to say. In many ways, there is no downside to it. However, many employers may not be willing to pay again for another I-140. As such, you should be prepared to pay for it. However, please keep in mind that there are probably thousands of people who are going to be filing downgrade I-140 EB-3 petitions. Therefore, it will probably affect the cutoff date in coming months. The effect may be a total wash, or the EB-3 may retrogress to where it was.
Can I premium-process the downgrade I-140?
Unfortunately, no. We cannot use premium processing because we do not have the original PERM approval. USCIS will need to contact the DOL to verify or retrieve the approved PERM, and that will take time. As such, no premium processing is allowed.
If I am already preparing a PERM under EB-2, do I need to start again if I want it to be EB-3?
No. After the PERM is approved, you can always elect to file your I-140 under EB-3. You just cannot upgrade an I-140 to EB-2 if your PERM was filed under EB-3.
Does filing an I-485 under “Dates for Filing” chart keep my children from aging out?
Unfortunately, no. Your children’s age will only “freeze” if you have an immigrant visa available to you, i.e. filing an I-485 under “Final Action Dates” chart. Filing an I-485 under “Dates for Filing” chart does not do that.
Does filing an I-485 under “Dates for Filing” chart affect my ability to extend my H-1B beyond six years?
Fortunately, no, because an immigrant visa is still not available to you. You will still be able to benefit from the provisions under AC21 to extend your H1B beyond six years.
Can I submit an I-140 petition to “downgrade” my approved I-140 petition from EB-2 to EB-3, and file an I-485 concurrently?
In theory, yes. However, if the I-140 is denied for any reason, the concurrently filed I-485 and related I-765 and I-131 applications will be denied automatically. A conservation and safer approach is to obtain the I-140 petition in EB3 category first.