In October 2020, the U.S. Citizenship and Immigration Service (USCIS) instructed applicants seeking to apply for Adjustment of Status under the Employment-Based category to use Filing Dates, rather than Final Action Dates. This created an opportunity for many individuals to file for Adjustment of Status, especially for Indian and Chinese nationals. We anticipate USCIS will again instruct applicants to use Filing Dates in October 2021. Further, we anticipate a similar outcome to the October 2020 announcement. We believe movement in the EB-3 preference category will stay ahead of the EB-2 preference category. This continues to be the case even in the August 2021 visa bulletin. Therefore, individuals who have EB-2 preference category I-140 approval and Program Electronic Review Management (PERM) Labor Certification may once again consider whether to file for a “downgrade.” This article explains the process and gives our perspective.

An individual must have a master’s degree or a bachelor’s degree plus five years of experience to qualify under the EB-2 preference category. An individual with solely a bachelor’s degree qualifies under the EB-3 preference category. Therefore, an individual who has an EB-2 I-140 approval will automatically meet education and experience requirements for EB-3 under the same PERM Labor Certification and I-140 approval. In most cases, a PERM Labor Certification used in support of an EB-2 petition can be used to support an EB-3 petition by the same employer and for the same position. The process of downgrading the petition, therefore, is filing a new I-140 petition with USCIS using the prior PERM Labor Certification. There is no law or regulation excluding an individual from having two I-140 petitions, one under EB-2 and others under the EB-3 preference category.

Since it is not an individual filing the I-140 petition, employers must agree and be willing to file the downgrade petition. The EB-3 downgrade process requires the employer to submit a new I-140 petition along with the associated fees. Before making the decision to file an EB-3 downgrade petition, employers along with their immigration attorney should carefully analyze if there are any significant issues with the PERM at the time of the initial EB-2 I-140 filing. It is imperative to ensure the prior I-140 was properly filed and approved. Further, employers should be able to demonstrate the ability to pay the PERM offered wage for the entire period going back to the priority date for the I-140 EB-3 downgrade submission.

Filing an Adjustment of Status Application (I-485) based on a pending downgrade to EB-3 or filing it with the I-140 downgrade using Filing Dates does not automatically confer a Permanent Resident Card to applicants. Instead, these applicants still need to wait until their priority date is current based on the Final Action Dates. However, having a pending Adjustment of Status application will give applicants several advantages, including applying for employment authorization and the ability to port/change to a new job in the same or similar occupation. Ultimately, obtaining a permanent residence card may help those with a pending I-485 to have more mobility in their career. It also gives their spouse and children the ability to work.

Indian and Chinese nationals who have EB-2 and I-140 approval who may be interested in the downgrade should reach out to their employers now and start the discussion. ILBSG stands ready to assist employers and individuals in filing the EB-2 to EB-3 downgrade as well as the I-485 application. Reach out to our attorneys now to get the right advice for your specific situation.

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