Downgrading Suddenly A Strategy for Backlogged Immigrants

Posted on: September 25th, 2020
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While it might seem counter-intuitive for an employment-based immigrant visa category that requires an advanced degree like a master’s or doctorate to have longer waiting times than a category that requires a bachelor’s degree or lower, this happens occasionally. Such was the case in 2013 when EB-3 cutoff dates for China were more recent than EB-2 cutoff dates. And it has just happened again for India with EB-3 dates more favorable than EB-2 who are unexpectedly benefiting from the April 22, 2020 immigrant visa ban.

But though it may not seem to make sense, it is, in fact, possible to file EB-3 and EB-2 petitions simultaneously or at different times based on the same PERM filing. The benefit of such a strategy is that it allows a person to pursue an adjustment of status in whichever category is more favorable without losing the original priority date.

“Downgrading” involves filing a new I-140 petition with USCIS. This normally requires submitting it with an original labor certification within the labor certification’s 180-day validity period. 8 CFR 204.5(e) allows a person to retain the priority date of the earliest approved I-140 and apply it to a later-filed I-140 petition. Because the petitioner in a downgrading case based on an earlier-filed I-140 tied to a PERM won’t have an original labor certification anymore since it was submitted previously, USCIS makes an exception if the new I-140 is being filed to request a different visa classification than the visa classification requested in the earlier I-140 petition.

Note that premium processing is not supposed to be available in this situation because USCIS needs extra time to locate the original petition and PERM approval. But there are anecdotal reports from the immigration bar of premium processing being accepted.

Also, remember that this is a new petition and someone pursuing this option should not withdraw the prior I-140 approval. Because it’s a new petition, all of the normally required evidence must be provided including evidence of meeting the criteria for an EB-3. Fortunately, for any PERM-based petition, a downgrade shouldn’t have an issue here since the requirements are typically lower, not greater. That often wouldn’t be the case for upgrading from EB-3 to EB-2. But not every EB-2 requires a PERM. A national interest waiver-based case, for example, does not require an approved PERM so if a downgrading happened for someone in that situation, it would need a new PERM. And a new PERM is needed if a person has changed employers.

If downgrading means that your priority date will be current for the new visa category, you can concurrently file an I-485 adjustment of status petition with the new I-140. USCIS will generally not issue an employment authorization document tied to the adjustment of status.