What are my options after downgrading from EB-2 to EB-3?

September 27, 2021
Marjorie M. Filice

Historically, the EB-2 category of I-140s has moved faster than the EB-3 category. For this reason, foreign nationals from certain heavily populated countries (China and India, in particular) preferred to file under the EB-2 category whenever possible. However, this year individuals from India will wait less time for an EB-3 category application than an EB-2, because the EB-2 category has been so popular. In order to take advantage of this unique situation, many applicants have chosen to downgrade from EB-2 to EB-3. This downgrade could potentially shorten wait times by years, allowing individuals many advantages including filing I-485 for themselves and dependents, along with Advance Parole and Employment Authorization.

This situation will not last long, as more individuals downgrade to EB-3 to take advantage of the shorter wait times, that line will fill up and wait times will grow again. If EB-3 wait times are once again longer than the EB-2 category, the prior approved EB-2 I-140 will remain valid and the I-485 can be requested to be adjudicated based on the EB-2 I-140 petition. There is no formal application that needs to be submitted in order to request adjudication back under the EB-2 category. Rather, your attorney will request USCIS to utilize your EB-2 petition if your priority date becomes current under the EB-2 category. Please note that you must continue to have a bona fide job offer for the role that you were sponsored under for the EB-2 position in order to utilize it.

Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you have questions regarding your employment-based green card.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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