Upgrading or Downgrading (i.e. EB2-EB3 Cross Porting)

[Jonty Rhodes]

Commentary
All of the Final Action and Application Filing Dates have been advanced at a very rapid pace, in anticipation of the FY 2021 annual limit being approximately 261,500, an all-time high. The movement of these dates has been taken in consultation with USCIS Office of Policy and Strategy to accommodate processing plans for USCIS Offices during the coming fiscal year and to maximize number use within the FY 2021 annual limits. Pending demand, in the form of applications for adjustment of status, and documentarily qualified immigrant visa applicants, is well below the estimated annual limit of 261,500. Adjustment of status applications filed early in FY 2021 are most likely to be adjudicated during the upcoming fiscal year.

This is great. I missed out on the filing date for EB2 by 6 days as my PD is May 20, 2011, but I will qualify under EB3 and can downgrade my application and file concurrently. Should this be a problem? I don't want to miss this chance in case if the dates retrogress in a month again and EB2 filing dates don't advance. At least, I can get EAD and AP with this.

[mesan123]

This is great. I missed out on the filing date for EB2 by 6 days as my PD is May 20, 2011, but I will qualify under EB3 and can downgrade my application and file concurrently. Should this be a problem? I don't want to miss this chance in case if the dates retrogress in a month again and EB2 filing dates don't advance. At least, I can get EAD and AP with this.
Oh no Jhonty... i was thinking you also made it... might be Q & Spec can answer that question for you. Do you have already approved EB3 Labor... then i think you can apply concorruntly.. i know my friend who downgraded and applied

[Jonty Rhodes]

Oh no Jhonty... i was thinking you also made it... might be Q & Spec can answer that question for you. Do you have already approved EB3 Labor... then i think you can apply concorruntly.. i know my friend who downgraded and applied

I have an approved Labor for EB2 so I guess I wouldn't need new labor certification for EB3. I will be able to file concurrently. So asking experts here if they think it would be a good idea. I have also emailed my lawyer but my lawyer is very conservative and is not aggressive at all. So I just want to be sure that I push him if he says no.

[vsivarama]

I have an approved Labor for EB2 so I guess I wouldn't need new labor certification for EB3. I will be able to file concurrently. So asking experts here if they think it would be a good idea. I have also emailed my lawyer but my lawyer is very conservative and is not aggressive at all. So I just want to be sure that I push him if he says no.

I am in the same boat as you. Let me know if you find out the answer. I will try and find the answer on my end as well and share. First lets hope they honor the filing dates.

[NJMavarick]

DoS has shown good faith effort to move dates ahead in anticipation of 100K extra visas. Congrats folks who will be able to file 485 in October.

Thanks Q - If you are eligible to file for both EB2/3, do you know how the process of filing I-485 going to be different?

[EB2IndSep09]

Congratulations to all who can file the AOS. Especially great to see the historically backlogged EB3 dates moving to 2015 for filing AOS.
Now we will see a downgrade rapidly. This might be an opportunity lost if people are not going to take advantage of filing AOS.

@Jonty - Push as hard as you can to file I-140 and AOS concurrent in EB3. Only thing is 140 cannot be filed in Premium as per my attorney firm Fragomen. Good luck!

[optimista]

Folks,

I am too happy that the dates have now moved substantially (got up quite early to check in and it was worth it :-)). Finally my filing dates are current (I have approved I-140 in both EB3 and EB2). If it is not too much of an hassle, can someone point me to good forum links for AOS documentation? And secondly, how should I handle this? Should I apply in both or just EB3 (since I have I-140 in EB3)? Also mostly my company and the lawyer are going to tell me to file only in one category. Congratulations to all who were waiting and got current in some ways in this visa bulletin. Thank you. Here is the link for October, 2020 Visa Bulletin in case anyone wants (https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html)

[qesehmk]

Folks I have moved this topic to its own thread since many people might benefit.

Personally I only vaguely remember the rules. But others with first hand experience please help your fellow backlogged folks.

My memory tells me - porting in reality is simply a brand new process of labor 140 and 485. The only difference is somehow DoS/USCIS can assign your oldest PD to your new application. Sorry that's the vague picture I have.

But is it possible to port - absolutely yes.

Also for 1000th time I will say this - you can hold multiple H1B at the same time and actually do two full time jobs. You can have 10 different companies sponsor your GC at the same time. You could move to a new job and have your GC being processed by the old employer. All is legal.

[optimista]

Thanks Q,
If I may ask a couple related questions. MY currently working with employer D (the PERM for new GC application with him is filed but pending) and my GC application with approved I-140 is with employer B. Now I believe I don't have to be on H1 visa with him and instead he can still file my I-485 and as soon as it is approved, what should I do? start working with him, but then in that case, I will have to 'leave' my H1 with employer D correct? I don't think at this point it is realistically possible to file/transfer H1 to employer B. Experts, please advise. Thanks.

[qesehmk]

Thanks Q,
If I may ask a couple related questions. MY currently working with employer D (the PERM for new GC application with him is filed but pending) and my GC application with approved I-140 is with employer B. Now I believe I don't have to be on H1 visa with him and instead he can still file my I-485 and as soon as it is approved, what should I do? start working with him, but then in that case, I will have to 'leave' my H1 with employer D correct? I don't think at this point it is realistically possible to file/transfer H1 to employer B. Experts, please advise. Thanks.

When your 485 is approved you don't need H1 and can work for both.

[Jonty Rhodes]

Congratulations to all who can file the AOS. Especially great to see the historically backlogged EB3 dates moving to 2015 for filing AOS.
Now we will see a downgrade rapidly. This might be an opportunity lost if people are not going to take advantage of filing AOS.

@Jonty - Push as hard as you can to file I-140 and AOS concurrent in EB3. The only thing is 140 cannot be filed in Premium as per my attorney firm Fragomen. Good luck!

Actually, you can file premium processing also as long as it is the same service center that processed your EB2 I-140. In reality, you don't get processed in 15 days because USCIS will check your LC first. Once they find it and see that if you meet all the requirements for EB3, they will do premium processing from that point onwards. The biggest issue will be getting all the documents from employer for I-140.

[Zenzone]

This is great. I missed out on the filing date for EB2 by 6 days as my PD is May 20, 2011, but I will qualify under EB3 and can downgrade my application and file concurrently. Should this be a problem? I don't want to miss this chance in case if the dates retrogress in a month again and EB2 filing dates don't advance. At least, I can get EAD and AP with this.

My PD is EB2 Jan 2011 so I'm current for filing. Should I still consider downgrading to EB3 in anticipation of being current for final action sooner? Completely torn :)

[vsivarama]

Does anyone know about the downgrade process. I know that you will need to apply a new i140 and 485 simultaneously. So what happens to the original i140 if the new i140 is approved? what happens to it if the new one is denied? Any clue on the intricacies?

[vsivarama]

@zenzone. It is an individual decision. But One thing to consider would be, if there are lot of downgrades between EB2 and EB3 till May 15, 2011, I think the USCIS case processing load will increase and create delays. Plus there may not be a clear picture as to how many people there are in EB2 vs EB3 as numbers become muddled (which they anyway will be post May 2011). I have no option but to downgrade as I do not make the cut. If I were in your boat I would have stayed put. But again that's an individual decision.

[EB2IndSep09]

Actually, you can file premium processing also as long as it is the same service center that processed your EB2 I-140. In reality, you don't get processed in 15 days because USCIS will check your LC first. Once they find it and see that if you meet all the requirements for EB3, they will do premium processing from that point onwards. The biggest issue will be getting all the documents from employer for I-140.

you are right there is no rule that stops from filing premium, but the attorneys had bad experiences on filing premium so they suggest go for normal.
Later upgrade to PP if required based on the FA dates.

Thank you Q. as always you are on top of the game to keep the blog clean kudos...

[vsivarama]

Does anyone know about the downgrade process. I know that you will need to apply a new i140 and 485 simultaneously. So what happens to the original i140 if the new i140 is approved? what happens to it if the new one is denied? Any clue on the intricacies?

[shriny]

My PD is Aug 2010, Eb2 or eb3 which one to file? I have an approved EB2 - i-140, any thoughts from Gurus?

Can I file Adjustment of Status using eb2 for now and later on downgrade to eb3 if final action dates for eb3 become current?

[eb2visa]

Check this for more info if you are planning to downgrade - http://immigrationgirl.com/can-i-downgrade-my-eb-2-to-eb-3/

[reys03]

Absolutely yes.

Hi Q and all.. my spouse's PD is May 2010 EB2I. Newbie question - What is the advantage to file concurrently in eb2 and eb3?

[GCGCGCGC]

Hello Friends,

I am in EB2 queue with PD June 6th 2011, As per the Q and other experts I can downgrade and file 140 and 485 concurrently from October if USCIS honors the DF chart.

My Son is turning 21 this December, we applied for Change of Status to F1 and it is still pending at USCIS.

I have following questions.
If I downgrade and file 140&485 concurrently.

What would be my Son's status? Can I include him with our application and file 140& 485?
Does he will be in GC queue eventhough he age out this December?

Please advice.

[abcx13]

I am currently Sep 2012 EB2-I and so not current even under FD, but I am current under EB3-I if USCIS accepts FD for that.

I recall some discussion here in the past that a EB3-I to EB2-I downgrade just involves a new I140 filing and no new PERM? Is that correct, Spec and other gurus? And if so, can I file I140+I485 concurrently with the downgrade?

Of course, all this is subject to USCIS accepting FD which we don't know and Siskind suggests may not happen.

[vbollu]

one more question, If I file for concurrent downgrade to EB3 and 485 by 31st October and in Nov Visa Bulletin, if EB3 dates retrogress to lets say 2011 or any earlier date still do I get I-485 or my application will be denied?

[cool_dude]

My priority date is EB2 May 25 2011. Going to miss by 15 days. Talking to lawyer about downgrading. They have not said yes or no. But will get back to me after uscis posts charts.
Should i downgrade?

[rocketfast]

My priority date is EB2 May 25 2011. Going to miss by 15 days. Talking to lawyer about downgrading. They have not said yes or no. But will get back to me after uscis posts charts.
Should i downgrade?

Yes. You will likely get GC in EB3-I faster than EB2-I, all else being equal.

[jimmys]

EB-2 India people whose dates are not current in Oct 2020 bulletin, please consider filing it in EB-3 India if you could. You may not see filing dates like these for few years or more. Act quickly if you want EAD/AP.

[GCGCGCGC]

Hello Q, Spec and other experts,

I am in EB2 queue with PD June 6th 2011, As per the Q and other experts I can downgrade and file 140 and 485 concurrently from October if USCIS honors the DF chart.

My Son is turning 21 this December, we applied for Change of Status to F1 and it is still pending at USCIS.

I have following questions.
If I downgrade and file 140&485 concurrently.

What would be my Son's status? Can I include him with our application and file 140& 485?
Does he will be in GC queue eventhough he age out this December?

Please advice.

[abcx13]

I am currently Sep 2012 EB2-I and so not current even under FD, but I am current under EB3-I if USCIS accepts FD for that.

I recall some discussion here in the past that a EB3-I to EB2-I downgrade just involves a new I140 filing and no new PERM? Is that correct, Spec and other gurus? And if so, can I file I140+I485 concurrently with the downgrade?

Of course, all this is subject to USCIS accepting FD which we don't know and Siskind suggests may not happen.
Answering my own questions:

http://www.reddyesq.com/eb-2-to-eb-3-india-downgrade-how-to-go-about-it-
https://cilawgroup.com/news/2020/09/24/eb-2-to-eb-3-india-downgrading-to-benefit-from-earlier-priority-date-how-and-when-to-do-it-2/
https://www.murthy.com/2013/07/26/interfiling-new-immigrant-petition-into-pending-i-485-case-part-1-of-2/

I think I will file an I140 under EB3 but not file the 485. Seems easier and cheaper to stay on H1B than EAD/AP and I have Canadian PR anyway.

[Tandav]

Hello Q, Spec and other experts,

I am in EB2 queue with PD June 6th 2011, As per the Q and other experts I can downgrade and file 140 and 485 concurrently from October if USCIS honors the DF chart.

My Son is turning 21 this December, we applied for Change of Status to F1 and it is still pending at USCIS.

I have following questions.
If I downgrade and file 140&485 concurrently.

What would be my Son's status? Can I include him with our application and file 140& 485?
Does he will be in GC queue eventhough he age out this December?

Please advice.

Only the Final Action date can lock your son's priority date without aging out. If you file your I-485 based on Filing date, it will not lock your son's priority date from aging out. Check for Child Status Protection Act (CSPA)..

[oraclept]

Experts - my date is June 2011 eb2. Missed fd by 1 month .. should I wait or downgrade ..? Any possibility of moving filing dates in next coming months ?

[Positive]

Yes. My PD is Sept 2013 EB2. I am going to downgrade to EB3 and file this october unless USCIS does another about turn. I have been working here since 2006..........

[oraclept]

2013 is best to move on to eb3 line imo..

[iamdeb]

As per below article the cost to downgrade is $8000. I checked the I-140 filing fee is $700. So is the attorney charging $7000+ for filing?
Can anyone here confirm if the cost is that high.
No wonder many employers wouldn't do the downgrade.

https://www.am22tech.com/eb3-india-beats-eb2-in-uscis-gc-priority-race/

[newyorker]

2013 is best to move on to eb3 line imo..

My PD is Sep 2012 from previous employer. My current employer filed labor in EB2 category and it is approved. I140 filed under EB2 category in premium processing got an RFE and lawyers are planning to respond next week.

1. Is it possible for me to file another i140 under EB3+i485 for concurrent processing hoping to get EAD?
2. Do I have to wait for current i140 in EB2 category to approve until I can file another i140 in EB3?

Experts, Any opinioins?

[newyorker]

My PD is Sep 2012 with previous employer. With current employer labor is approved and i140 filed in EB2 category with premium processing got an RFE. My lawyer is planning to send RFE response by next week.

Experts, Do I have to wait for current i140 to approve before filing i140 in EB3 category + concurrent 485?

[sudebusa]

Gurus, friends and compatriots - This is my first post in this forum but I follow this thread for last 7 years or so; it has given me hope during very grim period of time. :)

My EB2-I PD is Sep-2011 and thinking to downgrade to take advantage of the filing date movement. If I file for I-140 (EB3) and in couple of years or most likely more than that it happens that EB2-I FAD takes over EB3-I FAD, can I use my current EB2 I-140 for the final step of getting GC? Considering I don't change my employer.

Thanks in advance.

[optimista]

Folks,

I am in an odd situation and would appreciate if you can give me your few cents of advice.
I have an approved I-140 in EB2 and EB3 with my first employer(PD 29th July, 2010 - so I am current for filing date in both EB2 and EB3 categories). Now I am on to my 3rd employer and he has filed my PERM, unfortunately I am still waiting for approval of PERM before I can apply for I-140 in EB2 with the new employer. However I do have the option of going to my old employer as he is quite supportive and would be willing to file my I-485 (in EB3 or EB2). My PD is 29th July 2010. With this I need to know how should tackle below questions.

1. Should I wait for PERM approval with current employer which is expected some time in 2nd week of October and file for I-140 and I-485 concurrently in EB2 (they prefer EB2 category based on my profile and past filing) OR
2. Should I ask my current employer to file my I-140 in EB3 and then file I-485 concurrently OR
3. Should I instead opt for my old employer and apply for I-485 using approved I-140 in EB3?

Please, please help me decide this as now from point of timing this is very critical decision which I have to take.

Thank you very much in advance.

[optimista]

Folks,

I am in an odd situation and would appreciate if you can give me your few cents of advice.
I have an approved I-140 in EB2 and EB3 with my first employer(PD 29th July, 2010 - so I am current for filing date in both EB2 and EB3 categories). Now I am on to my 3rd employer and he has filed my PERM, unfortunately I am still waiting for approval of PERM before I can apply for I-140 in EB2 with the new employer. However I do have the option of going to my old employer as he is quite supportive and would be willing to file my I-485 (in EB3 or EB2). My PD is 29th July 2010. With this I need to know how should tackle below questions.

1. Should I wait for PERM approval with current employer which is expected some time in 2nd week of October and file for I-140 and I-485 concurrently in EB2 (they prefer EB2 category based on my profile and past filing) OR
2. Should I ask my current employer to file my I-140 in EB3 and then file I-485 concurrently OR
3. Should I instead opt for my old employer and apply for I-485 using approved I-140 in EB3?

Please, please help me decide this as now from point of timing this is very critical decision which I have to take.

Thank you very much in advance.
PS: Q, request you to leave this post here as there are many asking similar questions here and that other thread no expert is watching. Thx.

[iamdeb]

can anyone comment on the approximate cost of EB2 to EB3 downgrade. also, does the employer need to pay it our can i cover it myself.

[newyorker]

Folks,

I am in an odd situation and would appreciate if you can give me your few cents of advice.
I have an approved I-140 in EB2 and EB3 with my first employer(PD 29th July, 2010 - so I am current for filing date in both EB2 and EB3 categories). Now I am on to my 3rd employer and he has filed my PERM, unfortunately I am still waiting for approval of PERM before I can apply for I-140 in EB2 with the new employer. However I do have the option of going to my old employer as he is quite supportive and would be willing to file my I-485 (in EB3 or EB2). My PD is 29th July 2010. With this I need to know how should tackle below questions.

1. Should I wait for PERM approval with current employer which is expected some time in 2nd week of October and file for I-140 and I-485 concurrently in EB2 (they prefer EB2 category based on my profile and past filing) OR
2. Should I ask my current employer to file my I-140 in EB3 and then file I-485 concurrently OR
3. Should I instead opt for my old employer and apply for I-485 using approved I-140 in EB3?

Please, please help me decide this as now from point of timing this is very critical decision which I have to take.

Thank you very much in advance.
PS: Q, request you to leave this post here as there are many asking similar questions here and that other thread no expert is watching. Thx.

It would probably take at least an year or more to get green card after filing 485. Looking at your situation I would ask these questions to make the decision if I were you.

Which job will advance my career?
Which decision I would regret less in 5 years.

[TB12TB12]

In my case, lawyer retained by company is charging 15K (2 months to complete paperwork) - external lawyer 2.5K (1 week to complete paperwork). HR does not want to go through external lawyer. By the time everything will be ready dates will retrogress and I will continue with my life.

[Zenzone]

In my case, lawyer retained by company is charging 15K (2 months to complete paperwork) - external lawyer 2.5K (1 week to complete paperwork). HR does not want to go through external lawyer. By the time everything will be ready dates will retrogress and I will continue with my life.

Two months for downgrading pprwrk? That seems a bit odd. Also, typically USCIS when it honors filing dates, it keeps it that way for few months so not all is lost for you here even if your lawyer takes that much time.

[alpha0]

In my case, lawyer retained by company is charging 15K (2 months to complete paperwork) - external lawyer 2.5K (1 week to complete paperwork). HR does not want to go through external lawyer. By the time everything will be ready dates will retrogress and I will continue with my life.

It is very common, many HR depts want to work with approved law firm only. And since 140 belongs to employer, you can not do much about it. Go with that law firm and if needed, they will expedite your paperwork to file before OCt 31.

[peterpan]

I made mistake of using own lawyer in 2008
Had to jump through hoops to have company pay attorney for Perm. Setting them up in system to pay etc......big mistake....had to abandon half way through...lost 1.5 year filing PERM....still waiting for Green card.

[TB12TB12]

Two months for downgrading pprwrk? That seems a bit odd. Also, typically USCIS when it honors filing dates, it keeps it that way for few months so not all is lost for you here even if your lawyer takes that much time.

Thank you for showing the bright side of things. There are 2 categories of people in my company - ones who became current in EB2 & EB2 AND ones who will be current after downgrading. HR has decided to treat downgraders as 2nd preference.

[iamdeb]

It is very common, many HR depts want to work with approved law firm only. And since 140 belongs to employer, you can not do much about it. Go with that law firm and if needed, they will expedite your paperwork to file before OCt 31.

as per law does the employer has to pay for the cost of downgrade or can the employee pay for it himself?

[Positive]

as per law does the employer has to pay for the cost of downgrade or can the employee pay for it himself? you can pay for the I-485, employer still has to pay for the I-140 i think.

[iamdeb]

you can pay for the I-485, employer still has to pay for the I-140 i think.

ya i can pay for the I-485 but am not sure about the I-140 payment. getting varied information on google regarding it....hence checking with the experts here.......

[peterpan]

I-140 premium processing can be paid by you. The I-140 filing fee has to be paid by the company.

[Positive]

I see multiple law firms saying employee can pay for the I-140.

[Positive]

I think you can safely pay for the I-140.

[iamdeb]

I see multiple law firms saying employee can pay for the I-140.

yes i am getting mixed response on this...not sure what is allowed per law.....

[peterpan]

yes i am getting mixed response on this...not sure what is allowed per law.....

My comment was based on my experience in 2010. Back then employee could not pay for I-140 fee. I paid for premium processing though.

[Zenzone]

Thank you for showing the bright side of things. There are 2 categories of people in my company - ones who became current in EB2 & EB2 AND ones who will be current after downgrading. HR has decided to treat downgraders as 2nd preference.

You are welcome! My company is not very keen on downgrading to begin with actually so I would take it if they say they will take a little extra time.

[TB12TB12]

You are welcome! My company is not very keen on downgrading to begin with actually so I would take it if they say they will take a little extra time.

Actually I got the same vibes yesterday that they were not very keen on downgrading to begin with because they kept saying bulletin dates might change in favor of EB2 sooner than latter. Plus by the time I am ready with the docs retrogression might happen etc etc

In my mind I kept saying but but I need freedom from you guys --- so I need my EAD-AP LOL

[Positive]

Apparently, there is no law preventing it. I think the shift in position as to who can pay has happened after the courts have held that the beneficiary of an I-140 petition had standing in cases involving the petition. If payment of I140 is what is stopping you from filing in October I would say go ahead and pay for it.

[rocketfast]

I am in EB2 March 2011. My company (large silicon valley company with many Indian engineers) lawyers are already saying that they are getting overwhelmed by requests and will come with a strategy on how to handle the PD movement.

So, there will be some luck on who gets to file and who will miss out!

[Zenzone]

I am in EB2 March 2011. My company (large silicon valley company with many Indian engineers) lawyers are already saying that they are getting overwhelmed by requests and will come with a strategy on how to handle the PD movement.

So, there will be some luck on who gets to file and who will miss out!

You mean a strategy for handling downgrades Vs. straight up cases that don't need it. I understand that downgrades require a redo of I-140 which adds to the burden. I'm Jan-2011 EB2 and haven't heard anything adverse from the attorneys (although I work for a financial giant that don't have as much volumes as a buzzing silicon valley giant).

[rocketfast]

You mean a strategy for handling downgrades Vs. straight up cases that don't need it. I understand that downgrades require a redo of I-140 which adds to the burden. I'm Jan-2011 EB2 and haven't heard anything adverse from the attorneys (although I work for a financial giant that don't have as much volumes as a buzzing silicon valley giant).

I would imagine that they are getting lots of mails for downgrades. Even otherwise, I do see that just non-downgrade cases will be in hundreds which they likely do not have the capacity to do in a single month. Even for H1B, I imagine, they work over the entire first quarter to get the applications ready. Here, they have to do in a month. Hoping that they come through.

[Zenzone]

I would imagine that they are getting lots of mails for downgrades. Even otherwise, I do see that just non-downgrade cases will be in hundreds which they likely do not have the capacity to do in a single month. Even for H1B, I imagine, they work over the entire first quarter to get the applications ready. Here, they have to do in a month. Hoping that they come through.

Ya...we clearly don't have that many. Usually, large legal firms still will mop through the demand as this is how they make the big $$. I think it will all get done regardless.

[Arya Das]

Hi, All - I have a question to ask if anyone can help out. I am planning to apply for I-1485 for me and my spouse, but her passport is expiring within a month (end of Oct 2020). Are there any guidelines that passport must not be expiring within a certain duration (6 months etc.) for a person to apply I-485? Just trying to figure out any dependencies on passport dates expiration. Any help/pointers are greatly appreciated.

Thanks
Arya

[qesehmk]

Hi, All - I have a question to ask if anyone can help out. I am planning to apply for I-1485 for me and my spouse, but her passport is expiring within a month (end of Oct 2020). Are there any guidelines that passport must not be expiring within a certain duration (6 months etc.) for a person to apply I-485? Just trying to figure out any dependencies on passport dates expiration. Any help/pointers are greatly appreciated.

Thanks
Arya

To my knowledge that is not a requirement.

[pulpfiction]

Special case here - We are currently in Canada on an international engagement for my husband. He has a valid H1 till 2022. He has a PD of 06/2011 an an approved I140 (eb2) from a previous employer. Perm is just being started with the current employer. They said they would also do EB1 after he returns next year for which a perm is not necessary.
He is in good terms with his previous employer. Is it possible to have the previous employer "file" for the GC so we can received EAD/AP while abroad. What will be the implication is we continue with then new employer after doing this ? GC is for future employment. So wondering if we should purse this as a backup option to not let "once in a decade" opportunity slip. Trying not to complicate things too much, but thought It was worth exploring.

[Spurs19]

My priority date is Dec 4 2009 and I have approved I-140s in EB-2 and EB-3. My I-485 is based on EB-2. Should I file an Interfile request and ask USCIS to consider my I-485 in EB-3 or just wait until November bulletin to see if my EB-2 date becomes current?

I'm leaning towards waiting especially since USCIS can take a few months to approve my Interfiling request and by that time my EB-2 date may become current. But also want to make sure I get my GC as soon as possible, after being in US for 16 years. What is your recommendation?

[rocketfast]

My priority date is Dec 4 2009 and I have approved I-140s in EB-2 and EB-3. My I-485 is based on EB-2. Should I file an Interfile request and ask USCIS to consider my I-485 in EB-3 or just wait until November bulletin to see if my EB-2 date becomes current?

I'm leaning towards waiting especially since USCIS can take a few months to approve my Interfiling request and by that time my EB-2 date may become current. But also want to make sure I get my GC as soon as possible, after being in US for 16 years. What is your recommendation?

Your thought process is correct. EB2-I is guaranteed to hit your dates in 2-3 months.

[Arya Das]

To my knowledge that is not a requirement.

Thank you so much! Are there any guidelines available anywhere that i can refer to?

[optimista]

It would probably take at least an year or more to get green card after filing 485. Looking at your situation I would ask these questions to make the decision if I were you.

Which job will advance my career?
Which decision I would regret less in 5 years.

Thanks @Newyorker for your response. Considering the 'clean case' point of view, I am leaning towards applying with the current employer. Also in this case I have one more question, after applying for I-485, how soon I can get an EAD + AP? Thanks for your inputs.

[Spurs19]

Your thought process is correct. EB2-I is guaranteed to hit your dates in 2-3 months.

Thank You. I'll sit tight until the next bulletin and make a decision.

[pulpfiction]

Special case here - We are currently in Canada on an international engagement for my husband (1-2 years). He has a valid stamped H1 till 2022. He has a PD of 06/2011 and an approved I140 (eb2) from a previous employer. Perm is just being started with the current employer. Current Employer is very supportive and said they would also do EB1 after he returns next year for which a perm is not necessary. They will even entertain us returning ASAP if needed.He is also in good terms with his previous employer. Exploring if we should do anything fancy here.

Option 1 : Do nothing fancy. Wait for Perm to be applied and approved with current employer. Based on current trend, could be Q3-2021 for Perm approval. My understanding is I can choose Eb2 or Eb3 at I140 stage after Perm is approved ?

If filing dates continue to be honored then, can we apply I140 & I485 from Canada concurrently to get EAD & AP ? Is there a requirement for us to be in the US ? My husbands H1 is still active, however I do not have a H4, not sure if that would be a problem.

Worst case, Final action dates retrogress (Filing dates are no longer honored) and we go to the dark ages, we can return per original plan and file on EB1. Eb1 I140 takes over a year, so really 2023.

Option 2 : Request old employer to file with Eb3 downgrade ? Understand this comes with a commitment that my husband will re-join them when he obtains GC in the future. If an EAD is issued, and we continue to work abroad for current employer, What happens ? I understand this is highly risky, but thought I would throw it out there to see if anyone has done anything similar. Thanks.

[GCGCGCGC]

Downgrade to EB3 or wait for next bulletin

My PD is EB2 - June 2011. Filing dates are moved till May152011 for EB2 in October bulletin, Is there is any chance that Filing Dates(FD) move further in November bulletin for EB2? should I wait or downgrade and file I140 and 485 in EB3. I know it's hard to predict. What is your recommendation? Thanks

[user017]

Special case here - We are currently in Canada on an international engagement for my husband (1-2 years). He has a valid stamped H1 till 2022. He has a PD of 06/2011 and an approved I140 (eb2) from a previous employer. Perm is just being started with the current employer. Current Employer is very supportive and said they would also do EB1 after he returns next year for which a perm is not necessary. They will even entertain us returning ASAP if needed.He is also in good terms with his previous employer. Exploring if we should do anything fancy here.

Option 1 : Do nothing fancy. Wait for Perm to be applied and approved with current employer. Based on current trend, could be Q3-2021 for Perm approval. My understanding is I can choose Eb2 or Eb3 at I140 stage after Perm is approved ?

If filing dates continue to be honored then, can we apply I140 & I485 from Canada concurrently to get EAD & AP ? Is there a requirement for us to be in the US ? My husbands H1 is still active, however I do not have a H4, not sure if that would be a problem.

Worst case, Final action dates retrogress (Filing dates are no longer honored) and we go to the dark ages, we can return per original plan and file on EB1. Eb1 I140 takes over a year, so really 2023.

Option 2 : Request old employer to file with Eb3 downgrade ? Understand this comes with a commitment that my husband will re-join them when he obtains GC in the future. If an EAD is issued, and we continue to work abroad for current employer, What happens ? I understand this is highly risky, but thought I would throw it out there to see if anyone has done anything similar. Thanks.

For option 2 you have to be in the country.

[vsivarama]

Downgrade to EB3 or wait for next bulletin

My PD is EB2 - June 2011. Filing dates are moved till May152011 for EB2 in October bulletin, Is there is any chance that Filing Dates(FD) move further in November bulletin for EB2? should I wait or downgrade and file I140 and 485 in EB3. I know it's hard to predict. What is your recommendation? Thanks

Filing Dates usually do not move every month. They remain stagnant for a while. The thought process is to allow people to file for AOS who may potentially get current over the course of the year. Don't take it from me. Review the old visa bulletins to see how the filing dates move month over month. I missed out by a few months and I am looking to downgrade.

[GCGCGCGC]

Filing Dates usually do not move every month. They remain stagnant for a while. The thought process is to allow people to file for AOS who may potentially get current over the course of the year. Don't take it from me. Review the old visa bulletins to see how the filing dates move month over month. I missed out by a few months and I am looking to downgrade.

Thank you for your reply. Good luck with your downgrade.

[bluelabel]

Downgrade to EB3 or wait for next bulletin

My PD is EB2 - June 2011. Filing dates are moved till May152011 for EB2 in October bulletin, Is there is any chance that Filing Dates(FD) move further in November bulletin for EB2? should I wait or downgrade and file I140 and 485 in EB3. I know it's hard to predict. What is your recommendation? Thanks

This is little difficult to predict, however USCIS may be forced to move EB2I filing dates into 2012. In couple of months, EB3I queue would increase to a giant size due to downgrades and USCIS will be left with no choice but move EB2I filing dates if it has to use all available green cards(Almost 75000 in EB2 alone).

Also EB3 ROW was not current till Sept 2020 bulletin but EB2 row is current. This means there may be more pending ROW cases in EB3 queue than EB2 queue and Philippines nurses use more EB3 row GCs when the consulates open abroad.

[vbollu]

Downgrade to EB3 or wait for next bulletin

My PD is EB2 - June 2011. Filing dates are moved till May152011 for EB2 in October bulletin, Is there is any chance that Filing Dates(FD) move further in November bulletin for EB2? should I wait or downgrade and file I140 and 485 in EB3. I know it's hard to predict. What is your recommendation? Thanks

you can do one thing, start processing for EB3 downgrade and try to submit papers to attorney, every month visa bulletin is issuing bulletin around 19th or 20th day of the month, if if your date become current and then you can ask your attorney to file on eb2 category other wise you can proceed in eb 3 category. the AOS is same for eb2/3 application the only difference is filing I-140 in case of downgrading.

[cool_dude]

I missed eb2 filling date by 10 days..As per company's policy they only file one i-140. I am trying to get them to downgrade to EB3 and pay for I-140 fees.Still no answer from lawyer.Keep telling me we will be in touch

[cool_dude]

Well my employer declined to downgrade..

[TB12TB12]

Dear Gurus,

I think I do not have sufficient information to make a decision:-


Approved EB2I with PD Sept 2014
Spouse H4-EAD and working


If I downgrade to EB3, I get EAD-AP. All lawyers and friends are suggesting do not let go of H1B.


Now what happens to my spouse's current H4-EAD? Cannot risk losing her EAD.


Also, I do not plan on changing my employer. What advantage will EAD-AP give me?


Thank you

[sheemu_99]

Hi,
I am on currently on H1-B and have I-140 approved with my current employer and previous employer as well. My green card priority date is 24th Feb, 2012, EB2.

I need to know should downgrade to EB3 from EB2 with current Oct VISA bulletin changes or wait for my EB2 to be come current? I want to file EAD, I-485 and Advance parole along with EB3 I-140 at the same time and get out of H1-B as soon as possible.

Also, I have filed PERM labor through another company which is in pending status (Thought of changing employer to get better opportunity in the event dates were not moving and I was stuck). Is there a chance of getting RFE when filing downgrade with current employer?

Also, what can be expected in upcoming VISA bulletin with regards to PD movement. In other words, when can Feb 24th, 2012 becomes current?

I am an INDIA citizen.

[srimurthy]

Dear Gurus,

I think I do not have sufficient information to make a decision:-


Approved EB2I with PD Sept 2014
Spouse H4-EAD and working


If I downgrade to EB3, I get EAD-AP. All lawyers and friends are suggesting do not let go of H1B.


Now what happens to my spouse's current H4-EAD? Cannot risk losing her EAD.


Also, I do not plan on changing my employer. What advantage will EAD-AP give me?


Thank you
When you are applying for 485, also apply for EAD and AP for spouse, so they will have a EAD based on 485 and not H4 EAD.
You don't have to continue the H4EAD, but use the 485 EAD for spouse. And you can still continue to stay on H1 even if you have an EAD from filed 485, to my understanding.

[vsivarama]

Hi,
I am on currently on H1-B and have I-140 approved with my current employer and previous employer as well. My green card priority date is 24th Feb, 2012, EB2.

I need to know should downgrade to EB3 from EB2 with current Oct VISA bulletin changes or wait for my EB2 to be come current? I want to file EAD, I-485 and Advance parole along with EB3 I-140 at the same time and get out of H1-B as soon as possible.

Also, I have filed PERM labor through another company which is in pending status (Thought of changing employer to get better opportunity in the event dates were not moving and I was stuck). Is there a chance of getting RFE when filing downgrade with current employer?

Also, what can be expected in upcoming VISA bulletin with regards to PD movement. In other words, when can Feb 24th, 2012 becomes current?

I am an INDIA citizen.

My priority date is close to yours. I am downgrading. I know a few people who missed out in 2012 and those who did not. Neither got their GCs yet. But there is night and day difference between the two, especially in the current climate with ever changing H1 rules.

[vsivarama]

Dear Gurus,

I think I do not have sufficient information to make a decision:-


Approved EB2I with PD Sept 2014
Spouse H4-EAD and working


If I downgrade to EB3, I get EAD-AP. All lawyers and friends are suggesting do not let go of H1B.


Now what happens to my spouse's current H4-EAD? Cannot risk losing her EAD.


Also, I do not plan on changing my employer. What advantage will EAD-AP give me?


Thank you

You can maintain H1 even if you are on EAD. There are certain rules that you need to follow like NOT using AP while coming back into the country etc. This way your H1 will be intact. 485-EAD is better than H4-EAD. In H4-EAD the applicant cannot work if the authorization period is over and a decision is not yet made on the new application. For 485-EAD you can keep working for 180 days after expiration if a decision has not yet been made on the renewal. End of the day downgrading is a personal decision and so no one can help you with it. Just gather the pros and cons and make a decision.

[cool_dude]

Haven't been able to sleep since my employer declined to downgrade..

[Jonty Rhodes]

Thank you. I am moving ahead with downgrade application at this time. If my EB2 filing dates get current in November visa bulletin and if USCIS honors those date, then I can just go ahead and file I-485 in EB2 but otherwise I am downgrading.

[Jonty Rhodes]

I have a complicated question.

My PD is EB2 May 20, 2011. I missed out by 5 days in EB2 filing dates.

Now, I have 2 choices.

1. Keep the downgrade application ready which I already have and is with the attorney. Wait for November visa bulletin and see if the EB2 filing dates advance beyond May 20, 2011 which is my PD and if USCIS honors those dates. If it happens, then only file EB2 I-485 starting November 1 and cancel the plan for downgrading from EB2-EB3.

or

2. Go ahead and file EB2-EB3 downgrade application before October 31 regardless of what happens in November visa bulletin. If filing dates for EB2 advance beyond May 20, 2011 which is my priority date and if USCIS honors those dates, then go ahead and file I-485 in EB2 also starting November 1. In this situation, I will have an EB2 I-485 filed along with simultaneous processing of EB2-EB3 downgrade application as well.

I am leaning more towards option 2, because

If EB3 final action dates advance over next 1 year and if by that time my EB3 I-140 is approved on downgrade application, then I can actually get a green card.

If I don't downgrade right now and only file EB2 I-485 instead (per option 1) and if EB2 final action dates don't advance much but if EB3 final action dates advance and my PD becomes current over next year, I can downgrade at that time filing concurrently, however the worry is that EB3 I-140 may take few months for approval and by that time, if EB3 final action dates retrogress then I will not be able to get green card.

The other thing I was thinking was that if I follow Option 2, then I am even more safe in case my EB2-EB3 downgrade application is rejected. If that happens, I would not get EAD/AP on downgrade but since have already filed I-485 under EB2 as well so I can get EAD and AP with EB2 I-485 application.

I understand that only one I-485 application will actually get approved but I was thinking that instead of requesting USCIS to interfile I-485 which can take months, why not file I-485 in both EB2 and EB2-EB3 downgrade if allowed by PD being current in filing dates and in that way, whichever category is current for my PD, USCIS can approve my I-485 and discard the other I-485.

In a nutshell, I am thinking of downgrading EB2-EB3 application this month before October 31 and also filing EB2 I-485 whenever my EB2 filing date gets current (November or December visa bulletin). The only reason I am thinking of doing that is because I want to take advantage of whichever category the final action dates get current for my PD.

If EB3 final action dates advance beyond May 20, 2011 by end of next FY and if my EB3 I-140 is approved by that time, then I get a green card in EB3.

If EB2 final action dates advance beyond May 20, 2011 by end of next FY then I can get a green card in EB2.

The only additional expense I see is lawyer fees and filing fees to file another I-485 in EB2 apart from the money I am gonna spend on downgrading.

Does that make sense?

Need the expert opinion here.

[GCWait2011]

My PD is April 2011 in EB2 category, I can go ahead and file EB2-I 485 but I decided to downgrade and file EB3-I 485 concurrently as my child is 18 years of age. Before my child turns 21, I need to get him some status. By downgrading my application I will have both EB2 and EB3 I 140 approved and can file adjustment based on the Final Action date.
Please let me know if I am taking the right decision and do you foresee any issues ?

[AceMan]

My PD is April 2011 in EB2 category, I can go ahead and file EB2-I 485 but I decided to downgrade and file EB3-I 485 concurrently as my child is 18 years of age. Before my child turns 21, I need to get him some status. By downgrading my application I will have both EB2 and EB3 I 140 approved and can file adjustment based on the Final Action date.
Please let me know if I am taking the right decision and do you foresee any issues ?

The decision you are thinking of taking is not necessary.

261,000 visas available. Nearly 80,000 each for Eb1,2 and 3. Eb1 row is current, India getting close to current. Option of huge vertical spillover real for 2021.

Eb3 date is still more than a year ahead for you to protect your son.

A word of caution, please don’t get too greedy. A bird in hand better than a bunch in the bush.

[kash80]

I have a complicated question.

My PD is EB2 May 20, 2011. I missed out by 5 days in EB2 filing dates.

Now, I have 2 choices.

1. Keep the downgrade application ready which I already have and is with the attorney. Wait for November visa bulletin and see if the EB2 filing dates advance beyond May 20, 2011 which is my PD and if USCIS honors those dates. If it happens, then only file EB2 I-485 starting November 1 and cancel the plan for downgrading from EB2-EB3.

or

2. Go ahead and file EB2-EB3 downgrade application before October 31 regardless of what happens in November visa bulletin. If filing dates for EB2 advance beyond May 20, 2011 which is my priority date and if USCIS honors those dates, then go ahead and file I-485 in EB2 also starting November 1. In this situation, I will have an EB2 I-485 filed along with simultaneous processing of EB2-EB3 downgrade application as well.

I am leaning more towards option 2, because

If EB3 final action dates advance over next 1 year and if by that time my EB3 I-140 is approved on downgrade application, then I can actually get a green card.

If I don't downgrade right now and only file EB2 I-485 instead (per option 1) and if EB2 final action dates don't advance much but if EB3 final action dates advance and my PD becomes current over next year, I can downgrade at that time filing concurrently, however the worry is that EB3 I-140 may take few months for approval and by that time, if EB3 final action dates retrogress then I will not be able to get green card.

The other thing I was thinking was that if I follow Option 2, then I am even more safe in case my EB2-EB3 downgrade application is rejected. If that happens, I would not get EAD/AP on downgrade but since have already filed I-485 under EB2 as well so I can get EAD and AP with EB2 I-485 application.

I understand that only one I-485 application will actually get approved but I was thinking that instead of requesting USCIS to interfile I-485 which can take months, why not file I-485 in both EB2 and EB2-EB3 downgrade if allowed by PD being current in filing dates and in that way, whichever category is current for my PD, USCIS can approve my I-485 and discard the other I-485.

In a nutshell, I am thinking of downgrading EB2-EB3 application this month before October 31 and also filing EB2 I-485 whenever my EB2 filing date gets current (November or December visa bulletin). The only reason I am thinking of doing that is because I want to take advantage of whichever category the final action dates get current for my PD.

If EB3 final action dates advance beyond May 20, 2011 by end of next FY and if my EB3 I-140 is approved by that time, then I get a green card in EB3.

If EB2 final action dates advance beyond May 20, 2011 by end of next FY then I can get a green card in EB2.

The only additional expense I see is lawyer fees and filing fees to file another I-485 in EB2 apart from the money I am gonna spend on downgrading.

Does that make sense?

Need the expert opinion here.

Not an expert :| ;)

I am in a similar boat with a PD of 9/13/11. I went ahead with the downgrade option as the lawyer advised that if EB2 dates do move ahead, you can file an interfiling request to consider your I-485 under the EB2 category, no new I-485 is needed. I'm not sure what the lawyer will charge to filing the interfiling request, but don't think it will be the same as preparing a new I-485 application, hoping it to be considerably less.