We all know that difficulties often accompany change, especially when the change is the administration of the federal government. This is especially true for immigration since it is a hot-button issue. Nevertheless, there are ways to safeguard yourself from the whims of future administrations. So, even if you just got your I-140 approval under EB-2 and your priority date is years away from becoming current, planning ahead and acting now could save you from future frustration (and cost). Let’s look at this more closely.

For the most part, EB-2 (employment-based 2nd preference category) is preferable, as it is placed ahead of EB-3 (3rd preference) in the Green Card queue. However, in late 2020, a temporary change took place and EB-3 skipped ahead of EB-2 in the Visa Bulletin. Due to the fact that, under most circumstances, an applicant’s EB-2 eligibility also means they are eligible for EB-3, there was a rush to file I-140 downgrades concurrently with Green Card applications. Shortly thereafter, the VISA Bulletin went back to normal and EB-2 was again placed ahead of EB-3 in the queue.

At ILBSG, this change did not come as a surprise. Rumors began in late 2019 and early 2020 that this would take place. So, in early 2020, ILBSG tested the waters by filing a number of I-140 downgrades. Under the previous administration, we were met with an unfavorable USCIS. USCIS denied one of the I-140 downgrades, stating that an I-140 Beneficiary could not hold two separate I-140 approvals (EB-2 and EB-3) that were based on the same PERM Approval.

This case is a good demonstration of how different government administrations can adjudicate cases very differently, and highlights the importance of taking advantage of all pathways to receiving your Green Card while you have the opportunity. Since 2020, ILBSG has filed hundreds of approved downgrade cases and successfully defended dozens at the RFE stage. ILBSG is ready to do the same for you.

Currently, we find ourselves in very favorable conditions. USCIS continues to approve I-140 downgrades, as long as all requirements are met. Unfortunately, conditions may change again, and there are no guarantees that USCIS will act favorably on I-140 downgrades in the future.

ILBSG recommends securing I-140 approvals under both EB-2 and EB-3 categories as soon as you can to avoid another rush like 2020 and the possibility of an unfavorable federal government administration in the future. Since premium processing[1] is not available at the time of filing the I-140 downgrade, waiting for the I-140 approval can slow down the Green Card process. Having both EB-2 and EB-3 approvals early allows you to simply file the Green Card application later without a delay in the process. And you save the huge cost of upgrading to premium processing!

Contact us at ILBSG to further discuss the I-140 downgrade process and to confirm your eligibility. We work with our clients in their particular situations to ensure they get the right advice.

 

 

[1] USCIS may accept an upgrade to premium processing after the time of filing once they have issued a receipt number. However, USCIS will reject the request up until they locate the filed copy of the original I-140 petition and “original” PERM Approval. USCIS claims that 30 days is needed to locate the file once the premium request is received, but we have rare cases where the requests were denied almost a dozen times.

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