How to Properly Downgrade From EB-2 to EB-3 Visa Category
Until recently, the employment-based second preference (EB-2) category for India had historically offered more favorable visa bulletin cutoff dates compared to the employment-based third preference (EB-3) category. However, this is no longer the case, which has led to a rise in interest among Indian nationals in downgrading from EB-2 to EB-3.
In this guide, we will highlight common questions regarding this process, frequently addressed by immigration attorneys.
What Is an EB-2 to EB-3 Downgrade?
A downgrade occurs when an employer files an I-140 petition in the EB-3 category, using a PERM labor certification that was originally approved for a position qualifying under the EB-2 category. In other words, a position that required a master’s degree or a bachelor’s degree with five years of progressive experience under EB-2 can be downgraded to EB-3. The priority date from the original EB-2 case can be used for the EB-3 petition, making it a viable option when EB-3 has a more favorable cutoff date.
What Is the USCIS Policy on Downgrades?
While USCIS lacks a formal downgrade policy, there are no legal barriers, and cases are handled like any other I-140 petition.
Can an I-485 be Filed With a Downgrade Petition?
If the priority date is currently in the EB-3 category and the individual remains in valid U.S. status, it is generally possible to file the I-485 adjustment of status application at the same time as the downgrade petition.
Can a Downgrade Case be Filed if I Already Have an EB-2-Based I-485 Pending?
Yes, in most cases, an employer can file an EB-3 downgrade even if the I-485 is already pending based on an approved EB-2 I-140.
Is a New PERM Labor Certification Required to Downgrade From EB-2 to EB-3 With the Same Employer?
Typically, a new PERM labor certification is not required when downgrading from EB-2 to EB-3.
Can a Previous Employer’s PERM Labor Certification be Used for a Downgrade?
Generally, only the employer who originally filed the PERM LC can use it to file an I-140 petition.
Does a Downgrade Case Impact AC-21 Portability After 180 Days?
If the I-485 has been pending for at least 180 days, AC-21 portability rules allow the individual to change jobs to a similar role. The filing of an I-140 downgrade itself does not usually affect AC-21 eligibility.
Are There Risks in Filing a Downgrade Petition?
One of the main risks is related to the employer’s ability to meet the ability-to-pay requirement. Employers must show that they have been able to pay the salary listed in the PERM labor certification from the time it was approved. In downgrade cases, where the original PERM labor certification may be several years old, this can pose a challenge if the employer had financial difficulties during that period. A failure to demonstrate this could result in denial of the I-140, or even revocation of the EB-2 petition.
Additionally, USCIS may ask the employer to demonstrate their ability to pay all employees with approved I-140 petitions, not just the individual involved in the downgrade, which could lead to further complications.
Can My Employer Request Premium Processing for a Downgrade Petition?
If the PERM labor certification is already at the same service center where the I-140 downgrade is filed, USCIS may accept a premium processing request. However, there have been instances where such requests were rejected. As a precaution, employers may opt to file the I-140 via regular processing, and later request an upgrade to premium processing after receiving the receipt notice.
Can I Switch Back to EB-2 After Downgrading to EB-3?
It is possible to switch back to EB-2 if the original job remains available, and the USCIS policies allow for another I-485 Supplement J filing. However, this may involve risks, as the USCIS could reassess the entire case, including the employer’s ability to pay and the employee’s qualifications.
Heckler Law Group is ready to guide you through the detailed nature of U.S. immigration to ensure a smooth process. Get started by requesting a free case evaluation, and our team will contact you promptly.
This post is intended for general information purposes only and does not constitute legal advice. You should not act or rely on any information in this post without seeking the advice of a licensed immigration attorney.