EB-2 to EB-3 Green Card Downgrading for India and China
The green card waiting times for family and employment-based categories are notorious for being lengthy, with processing times for some cases spanning decades. Traditionally, the higher the preference level of the applicant, the shorter the waiting time. For this reason, many past applicants, especially those from higher populated nations with extensive waiting times, such as India and China, have attempted to push their cases into the highest preference category possible to lessen their waiting time. However, in response to comprehensive immigration reform and the COVID-19 pandemic, an unprecedented phenomenon is occurring in which immigrant EB-3 green card applicants from India and China are experiencing shorter waiting times than their EB-2 green card applicant counterparts.
Typically, the Department of State limits annually the number of employment- and family-based green cards that are available to a particular country. The long waiting times for green card issuance arise due to this limit being reached and a backlog being created. Applicants on the backlog then have to wait several months or years to receive their immigrant visa number, which is required for them to file their I-485 or begin the consular process. Their wait time is dependent on their priority date. The Department of State publishes a bulletin monthly in which they post “final action dates” for each nation (or chargeability area) and each green card category. (There is also a “dates for filing” chart that USCIS sometimes uses in lieu of the final action dates chart.) Applicants stuck in the backlog must pay attention to these published final action dates. Once their final action date in their category and chargeability area matches or passes their priority date, an immigrant visa number will become available to them and they may move on to the final step of the green card process. Ultimately, this results in applications that exceed per-country limits, particularly impacting applicants from more populated countries like India and China. This results in a backlog of their priority date, which means they must wait years in some cases for their priority dates to become current.
Difference Between an EB-2 Visa and EB-3 Visa
The EB-3 preference category is relatively easy to qualify for in comparison to EB-2. The EB-3 category requires the applicant to have a job offer from a U.S. employer that is full-time and isn’t seasonal or temporary, and that requires at least a bachelor’s degree or equivalent experience or licensing. The EB-2 category requires satisfaction of those same requirements, as well as the completion of an advanced degree or a display of “exceptional ability” in the applicant’s field. This typically results in fewer EB-2 applicants and thus, shorter waiting times for that group. This is why many applicants in the past have opted to push for EB-2 classification in an attempt to speed up their processing time.
How long does it take to downgrade from EB-2 to EB-3?
Cases filed at the Nebraska Service Center are currently taking 5 to 9 months. Cases filed at Texas Service Center are taking anywhere from 3.5 to 15.5 months. These are the posted processing times. Premium processing is available if the PERM Labor Certification, included with the original I-140 filing, is at the service center where the I-140 downgrade is being filed. It should be noted that some cases have been rejected when filed concurrently with a premium processing request. Our advice is to file the I-140 downgrade under regular processing and then interfile a premium processing request once the receipt notice is issued. This will ensure that the I-140 downgrade is not rejected due to a premium processing complication.
Is EB-3 faster than EB-2?
The Visa Bulletin for the beginning of the 2023 fiscal year shows that EB-2 and EB-3 are about even for nationals of India. For nationals of China, EB-2 is slightly faster. This happened because many people downgraded from EB-2 to EB-3 in 2020 and 2021, which evened out the wait times.
For a thorough analysis, it is also important to review the “dates for filing” since USCIS sometimes uses this chart in lieu of the final action date chart. (This is something that needs to be determined with every monthly visa bulletin.) Under the dates for filing chart, we see a similar phenomenon of EB-2 and EB-3 being roughly the same wait time. EB-3 for India is slightly longer than EB-2, whereas EB-2 for China is more advantageous than EB-3.
In light of these dates, it bears close monitoring from month to month to determine if filing an EB-3 downgrade is advisable.
Pros of downgrading an EB-2 to an EB-3 Classification
If Visa Bulletin dates shift again such that EB-3 is more advantageous than EB-2, there are several things to keep in mind before deciding on an EB-3 downgrade. The primary benefit is that, given the stringent requirements for an EB-2 visa, all qualifying EB-2 applicants would be instantly eligible for the EB-3 classification. And with the changes in priority dates, an applicant who opts to downgrade their EB-2 classification to an EB-3 classification can keep their EB-2 filing date for their new EB-3 application, thereby improving their place in line. Once their priority date becomes current and their visa number has been issued, an applicant can then move on to the submission of their I-485. With an I-485 application, they will also have the ability to apply for an EAD card, which allows them to work in the U.S. until their green card is issued.
Furthermore, there are benefits for nonimmigrant visa holders, such as H-1B and L-1, who downgrade their EB-2 to an EB-3 classification application. Having an I-485 EAD allows the applicant to stay in the United States in the event that they are laid off. Additionally, an H-4 spouse can work with an I-485 EAD even if they lose their H-4 EAD.
Cons of downgrading an EB-2 to an EB-3 Visa
The most notable negative aspect of downgrading is the procedure. The EB-3 downgrade will require an applicant’s employer to submit an additional I-140 petition with the associated fees, such as the filing fee, premium processing fee, and attorney fee. The new I-140 will require new forms, new evidence of the employer’s ability to pay the proffered wage, and potentially an updated employment verification letter. These documents will most likely be identical to the applicant’s original EB-2 petition and the required supporting documents will be the same documents used in the earlier EB-2 petition. The process is repetitive but relatively straightforward.
In some cases, employers may wish to avoid these extra costs and not support an EB-2 to EB-3 downgrade. However, some employers will still support the filing if the employee bears some or all of the costs.
EB-2 to EB-3 Downgrade: Step-by-Step Process
If an applicant is working for the same employer that sponsored their initial EB-2 petition, here is the detailed step-by-step process for downgrading to an EB-3 classification:
- The applicant and their employer must prepare and submit an I-140 package requesting EB-3 classification using the previously certified PERM that was used in their EB-2 petition. USCIS permits the usage of a prior PERM Labor Certification if it was used to support a previously filed I-140 while the ETA 9089 was still valid. A new PERM is not needed as it is with the same employer.
- The new I-140 petition must be submitted with a copy of a previously certified ETA 9089 and proof that the applicant meets the minimum requirements of the position listed in the certified ETA 9089. Moreover, the employer must submit evidence to prove their ability to pay the proffered wage. Employers can complete this step by attaching copies of their last 2-3 federal tax returns, financial records, as well the applicant’s W-2 and pay stubs.
- If the filing date for EB-3 becomes current, the I-485/I-765 and I-131 applications can be filed by the applicant concurrently with the I-140 request. This enables the applicant and their qualifying dependents to receive EAD’s and Advance Parole documents while the I-485 is pending. Concurrent filing is recommended as the dates on the visa bulletin can retrogress at any time.
- A premium processing request may be submitted to USCIS once a receipt notice for the I-140 has been received, as USCIS needs to retrieve a copy of the original certified ETA 9089 from the previously approved EB2 I-140 file.
- If USCIS accepts the premium upgrade, it will adjudicate the I-140 within 15 business days of when it starts the premium processing clock. If it does not accept the request for premium processing, then it will take 4-5 months to adjudicate the I-140 downgrade.
In the event that an applicant wants to downgrade their EB-2 petition to an EB-3 with a different employer, a new PERM will likely be required along with the new I-140 for the EB-3 classification. Other than the addition of the new PERM, the process should remain the same.
Ultimately, the type of green card or classification does not change the benefits. All green cards, regardless of their requirements, result in legal permanent residence for the holder. Green cards are typically valid for ten years at a time and only need to be renewed, meaning that a simple extension filing is all that is needed, rather than a whole new green card application. Therefore, downgrading from an EB-2 to an EB-3 does not restrict any green card benefits that would have otherwise been received. An EB-3 downgrade is best handled by an immigration attorney who can review the specifics of each case to ensure success upon the first submission of the required documents. We have seen significant delays and disruptions on cases that were filed hastily and without proper supporting forms, letters, and documents.