UScis needs to move the filing dates together for both Eb2 and 3 together if they are serious about cleaning up for atleast next 2 bulletins to avoid downgrades. But at this point it is only wishful thinkingQuote:
Originally Posted by EB2/eb3
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UScis needs to move the filing dates together for both Eb2 and 3 together if they are serious about cleaning up for atleast next 2 bulletins to avoid downgrades. But at this point it is only wishful thinkingQuote:
Originally Posted by EB2/eb3
People who have EB3 & EB2 both and PD before Oct 2009, don't need to do anything, since USCIS will pick the best possible case which is EB3 current; and start processing. Right?
Most of the EB3 folks with PD's in 2009 have ported to EB2 , I am not sure how much inventory USCIS would like to build in EB3-India, EB3-->EB2 porters might have already applied their 485's in 2012 when the dates were current.
My guesstimate tells me EB3-India dates will be pushed further beyond May 2010 to build significant inventory.
Anyone familiar with numbers can contest my theory.
USCIS would need to move EB3-I filing dates to early to mid 2011 to build inventory as there are only 1600 cases pending for entire EB3 I + cases at FOQuote:
Originally Posted by march1612
How will that impact EB2-India movement specifically Final action dates?Quote:
Originally Posted by texas_
I have stated EB3I only, EB2-I would slowly move by 2 weeks as predicted.Quote:
Originally Posted by march1612
Will there be No porting (EB3-->EB2) impact on EB2 Final action dates?Quote:
Originally Posted by texas_
Thanks Q. This is a good clarification and fills in a knowledge gap for me.Quote:
Just a quick add .... an upgrade is really a separate application. So unless a person withdraws first one ... the person effectively has two GC applications.
This would be the logical thing to do as an individual. Not a logical thing to do as a group (assuming USCIS will cluster fkuc 2 485 applications as Q suggested)- but we do not (and will not) have any group representation right now, so there is no point hoping that everyone will do the right thing for the group.Quote:
Bro, porting when dates are current means you file your I-140 at that point in time. This porting I-140 cannot be filed in Premium. So, by the time I-140 gets approved, the porting may very well have been reversed. So, it does not make sense to wait till dates are current. Whereas the smart guys and those who have come to the US to take risk, will file the I-140 right away and reap the reward of a 2nd que, being in position to utilize either one, depending on the trend at that time.
So the "smart" thing for people with PD greater than April 2010 to do is to get their second application also posted right now. If I-140 approval takes 6 months or so, they will have a better chance getting lucky if the dates advance in the last quarter.
Even smarter thing is for CO/USCIS to just announce that they will automatically treat every EB2 application as EB3 application too. This will reduce the burden of their work and will not result in absolute mayhem.
I assume you are talking about a situation where a person:Quote:
Originally Posted by Desi Dude
a) Has both an EB2 and EB3 I-140 approved (with the same employer)
AND
b) Already has an I-485 pending based on the EB2 I-140 petition.
USCIS will not pick the case that has the best possible outcome.
An I-485 can only ever have one basis of eligibility.
To change that eligibility, the applicant must inform USCIS, IN WRITING, that they wish to change the basis of eligibility.
You can find information about this in the USCIS Policy Manual under Volume 7 - Adjustment of Status, Part A - Adjustment of Status Policies and Procedures Chapter 8 - Transfer of Underlying Basis I recommend a thorough read.
From that:
The request can be attached to a new I-140 application among other scenarios.Quote:
B. Filing Requirements
1. New Application or Fee Not Required [9]
An applicant may submit a transfer request, in writing, to the USCIS office with jurisdiction over the application if eligibility can be established. Generally, no new adjustment application or filing fee is required. As noted above, however, a request to convert to a INA 245(i) adjustment would require payment of the additional $1,000 fee and filing of Supplement A to Form I-485.
2. Request Must Be Made in Writing
The adjustment applicant must request in writing that USCIS transfer his or her pending adjustment application from one basis to another.
If an applicant verbally requests transfer of an adjustment application, for instance, during the adjustment interview, an applicant should sign and date a written statement to that effect. The interview could then proceed without further delay provided the applicant remains eligible to immediately adjust under the new classification.
Having requested a switch from EB2 to EB3, if in the future, EB2 were to become more favorable, another written request would be required to switch the basis of the I-485 from EB3 to EB2. This all takes time and, as the Chinese have found, the window of opportunity may be lost by the time the request has been processed and approved.Quote:
C. Petition Considerations
Prior to adjudication of an adjustment application, USCIS may allow the applicant to transfer a pending adjustment application to a different petition or basis regardless of whether the petition that forms the new basis for the pending adjustment application has already been approved or is pending, if allowable by law or regulation and provided certain requirements are met. [10]
Only one petition may form the basis of an adjustment application at any given time. The applicant must clearly designate in writing which petition serves as the new basis of the adjustment application. Several steps are required to ensure that the petition that forms the new basis for the pending adjustment application is properly matched with a pending adjustment application.
If concurrent filing is allowed, then transfer applicants are generally instructed to:
•Submit the new petition (with proper filing fee and signature) with a signed letter requesting that his or her pending adjustment application be transferred to the new petition. Include a cover sheet (preferably highlighted with colored paper) stating, "REQUEST FOR TRANSFER OF PENDING FORM I-485 (CASE #) TO ENCLOSED PETITION."
•Include a copy of the adjustment application's receipt notice with the new petition filing.
•Include evidence of eligibility for the new immigrant category in support of the transfer request to transfer to a new eligibility basis. A new adjustment application and fee are not required (see INA 245(i) exception above).
If concurrent filing is not allowed, then transfer applicants are generally instructed to wait until the new petition is approved before submitting a signed letter requesting the pending adjustment application be transferred, with the other documentation mentioned above.
Once an applicant makes a request to transfer a pending adjustment application from one basis to another and if the transfer request is granted, the original petition no longer supports the adjustment application. This rule applies even if the original petition is approved. The transfer request must be made sufficiently ahead of the time of adjudication of the adjustment application in order to give USCIS reasonable time to match up the replacement petition with the pending adjustment application. An officer must deny transfer requests received on or after the date the adjustment application is finally adjudicated.
1. Approved Petition to an Approved Petition
The beneficiary of an approved petition with a pending adjustment application may replace the approved petition with a different approved petition as the basis for the pending adjustment application.
2. Approved Petition to a Pending Petition
The beneficiary of an approved petition with a pending adjustment application may replace the approved petition with a pending petition as the new basis for the pending adjustment application in certain categories. The new basis must allow for filing of an adjustment application prior to approval of the petition (concurrent filing), or the transfer cannot occur and should be denied.
3. Pending Petition to an Approved Petition
An adjustment applicant with a concurrently filed and pending immigrant petition may replace the pending petition with a subsequently filed and approved petition as the basis for the pending adjustment application.
4. Pending Petition to a Pending Petition
An adjustment applicant with a concurrently filed and pending petition may request to transfer the adjustment application to another pending petition, provided that the new basis allows for the filing of the adjustment application prior to approval of the underlying petition.
This is the correct procedure to switch the basis of an already pending I-485. USCIS frown on multiple I-485 applications and will, at a minimum, ask for extra ones to be withdrawn.
If that wasn't your scenario, then I still think the information above will be helpful to others.
2-3 months difference for EB2 can be 1-2 years wait, so need careful understanding based on pending inventory in EB3.
EB-2 China people have have thought , when early advancement in 2013/14, later they realized the EB3 dates moved faster than EB2 for long time. This may happen with case with EB2-I folks next 1-2 years.
Thanks Spectator for the detailed explanation. I'm sure a lot of people are in this situation.
It seems from your post that one can simply send an email to USCIS asking to switch from EB2 to EB3 as basis (which is very similar to the reverse scenario that has been done successfully over the last few years)
I agree with your theory:rolleyes: that most EB2I with PD <2010 are essentially upgrades from EB3. so, we already have a ton of Inventory of folks who have both EB2 and EB3 I-140 approved and ready to go in either direction for their AOS.Quote:
Originally Posted by march1612
But if they come back in EB3 Lane then wouldn't they be subject to Interview process?Quote:
Originally Posted by HarepathekaIntezar
With all reverse-porting and porting, can we assume EB2 and EB3 would stabilize around May 2010 during FY19 ?Quote:
Originally Posted by HarepathekaIntezar
If 485 is already applied prior to March 2017, There is no mandatory interview process. However, it is subjected to officer discretion for send out an interview if he/she would like to have additional information from the applicant
Interview process is no longer the big elephant in the room that it is being made out to be. Folks are getting scheduled pretty fast. April 2018 filers are already having their Interviews scheduled and i even saw some GC Approvals for April 2018 filers.Quote:
Originally Posted by texas_
Quote:
Originally Posted by HarepathekaIntezar
A small matter of 6+ months towards interview.
We should have some good data analyst and mathematical modelers on this forum. With available data and some conservative assumptions cant we come up with downgrading chart/prediction so we can utilize Eb3i and eb2i quota so both categories move simultaneously and no one gains unfair advantage? We have been sympathetic with eb3i all along. But now due to porting eb3i will have unfair advantage.
Im not smart nor i have a good understanding on how to interpret/analyze available data
For a decade EB3 did not utilize the full quota. As per rules right of spill over goes to EB1 and EB2. EB1 did not have enough so EB2 got a lot of SO till 2014. Only option for EB3 guys, port. Sympathies all along did not have any use. Also when EB2 I moved to 2010 in 2012, EB3 was languishing in 2002, simultaneous forward was conveniently ignored.Quote:
Originally Posted by swordfish380
So after a long time EB3 gets its first chance of filing faster than EB3, you deem it as unfair advantage. I repeat it is only filing. Even from 2007 people in EB3 are waiting to be greened.
If people can port down from EB2 to EB3, they will do it.
I guess everyone with a PD before 2010 would have a 5+ year experience and hence qualify for both EB3 and EB2 submissions. So people would keep moving and also anyone with EB3 / EB2 PDs from 2015 onwards, by the time their dates become current they will gain enough experience to file in any category. So there is no unfair advantage for anyone here. and this to and fro would continue for China and India until we have good SO's which is not going to happen with EB1 backlogs or until the country cap removal which is also not going to happen.Quote:
Originally Posted by AceMan
I would agree that EB3 SO has not been handled well. The full allocation was not used, even when EB3-ROW was retrogressed. With Countries retrogressed, no visas in EB3 should be wasted, as the horizontal SO rules come into effect.Quote:
Originally Posted by AceMan
It's a myth that EB1 used to provide SO to EB2. It only did so in FY2011 when the introduction of the Kazarian memo caused processing of EB1 to be paused.
Spillover Source to EB2-I ------- FB ------ EB1 ----- EB2 ---- EB4 ----- EB5 --- Other --- Total
FY2010-FY2014 ----------------- 27,659 -- 12,156 -- 23,786 -- 8,263 -- 17,315 -- 1,210 -- 90,389
11,158, or 92% of EB1 spillover to EB2 came in FY2011.
The real source of perceived SO from EB1 was not EB1 itself, but under use in Family based (criminal, since all categories are always been retrogressed), EB5 and EB4.
DOS has since sorted out the FB allocations and number use has increased in EB5 and EB4.
That leaves horizontal SO within EB2, which has now also dried up. Even some of that was a bit of an illusion, since very slow PERM processing at various times during the period created a lack of ROW I-485 applications within a FY.
As for your point about EB3-I not moving in FY2012, at that time EB2-I was running out of inventory, so CO pushed the dates forward to create a new one and have visibility into future demand. The same was not true of EB3-I at that time, so the dates were not advanced for EB3-I.
Today, we have the opposite situation. EB3-I has run out of the previous inventory because they have now surpassed July 2007. CO needs to build a new inventory for demand forecast purposes. There is still plenty of EB2-I inventory, so there is no need to advance those dates more than supply of visas allows.
Spec spoke about spillover quite beautifully. I just want to add that pre-2011 EB2-I used to significantly benefit from EB5 which would only utilize barely 1.5K numbers and almost 8-9K would flow down to EB2 via EB1. EB1 itself would almost consume its own numbers and perhaps used to leave 2-3 K on the table.
Another source was EB4 which would typically consumer 3-4K and the rest was given to EB2 via EB1.
As Spec correctly points out now all these sources have pretty much dried up leaving EB2-I at the mercy of EB2-ROW.
There is one more nuance here - the EB2-I was not always lucky to get all the visas and then use it.
The agencies (DoS and/or USCIS) used to take the SO in EB2 and move it down to EB3-ROW. This was challenged in courts (don't remember how and when) and that's how the horizontal spillover's precedence was established.
p.s. - Not many people here remember about the Kazarian memo. And that's a good thing believe me.
You have rephrased my point. In FY 2012 EB2-I moved forward due to the lack of inventory. In FY 2019 we are in the cusp of EB3-I moving forward due to the lack of inventory. EB3 - ROW was current since June 17. Even then EB3 wasted close to 2500 visa's in FY 17. Added to that USCIS did not respect filing date at all at the start of FY18. Even with the lack of inventory for EB3-ROW, EB3-I had a pathetic movement for the 2nd quarter of FY17 with no movement in the first quarter. All it resulted in not proper utilization of the numbers and when FY19 started when USCIS accepted filing date after 2 years, people come up with unfair perception even though EB3 -I is 11 years behind.Quote:
Originally Posted by Spectator
I am suggesting that illogical porting by EB3 -> EB2 ->EB3 (flipflop) (people who already have AOS in EB2) will potentially skew the actual demand which will result in cascading delay again for FY19.
My company's immigration person has said this about reverse porting -
a) Conversion of an EB-3 case to EB-2 implies a regression. XYZ as a company will look bad and lose its credibility in front of USCIS. Also XYZ could be questioned by the USCIS on why we filed your case in EB-2 in the beginning and are now filing in EB-3. Does it mean that the same job for which we filed your Green Card now has reduced requirements? Why should XYZ as a company be made to look bad in the eyes of the USCIS and possibly even face legal or other disciplinary action, in order to meet your requirement of lowering the category of your immigration petition? USCIS could come back and question us that we are basing our immigration requirements conveniently on the basis of priority dates rather than based on genuine requirements of the positions and the company.
b) Remember that Green Card is not filed on your individual education and experience, but on the education and experience requirements of the job for which your Green Card was filed. Please get me a letter from your BU Head stating why the requirements of the job are now lower and can be fulfilled by a person with lesser educational qualification and experience than what we had earlier anticipated.
Not sure how to answer this. Can someone help if the immigration dept is justified in having this point of view.
All are valid points, in LASHAB's post.
Which means it only makes sense for those with I-485 pending who had upgraded from EB3 to EB2, since they will be having both EB3 & EB2 I-140. In that case, you won't have to deal with the company, just need to send an email to USCIS asking to use EB3 I-140 instead.
I am not sure that is a valid argument - though it does not surprise me that companies are using that argument to keep you tied to them longer. Someone can file in EB3 even if the job says that it needs MS or 5 year experience. I don't think it says anywhere that you should file in EB2 simply because the job demands a MS.Quote:
Originally Posted by LASHAB
I am sure your company will change tact if enough people change jobs to start a new EB3 application at a new company.
But all of those arguments are bull****.Quote:
Originally Posted by LASHAB
a) The Basis of the new EB3 I-140 is the same PERM that had sufficient requirements for an EB2 I-140 approval.
b) The requirements (roles and responsibilities) of the job haven't changed.
c) The education and experience requirements haven't changed.
d) The PWD hasn't changed.
The I-140 petition will be identical to the original one, except that it is requesting approval under EB3.
There's no maximum requirements for filing under EB3. You could require a Nobel Prize and it wouldn't stop the case being filed under EB3.
It's just using the most advantageous Category for the beneficiary of the petition.
That's not unlawful.
This is just a convenient excuse for a Company not to file under EB3. It must really be ******* some HR jerks off.
They would only have a valid point if you were asking them to file a PERM with lower requirements than the job would normally have and which precluded an EB2 I-140. Then, they could never file for the position under EB2 again and any previous I-140 approvals under EB2 would become questionable.
Just want to clarify for my own understanding - How can the PERM which was qualified for EB2 requirement can be qualified now for EB3 ? Person can qualify for EB2 or EB3 based on his education/experience but PERM was filed based on the job requirement. If the same PERM is used now for EB3 I140, isnt that downgrading the job requirement ?Quote:
Originally Posted by Spectator
By definition, a PERM for a job that meets the minimum EB2 requirements must also meet the minimum requirements for EB3.Quote:
Originally Posted by aryansd
The EB3 I-140 is being filed on the basis of the same PERM certification that also meets the requirements to file an EB2 I-140. The job role is the same, the minimum educational and experience requirements are the same and the minimum that can be paid is the same
The fact that a PERM certification meets the minimum requirements for EB2 does not exclude it being used for EB3, or mean that it must be used to support the highest EB category it qualifies for.
The job requirements are unchanged. It's just that the I-140 is being requested in a different EB category.
Why is this so difficult to understand.
My last.
That is what I have been saying. But even for those who have only filed in EB2 and do not have an EB3 I-140, it does make sense to downgrade, simply because the EB3ROW SO would be utilized by EB3 category before being sent up to EB1. I don't see EB2 having any SO for a couple of years.Quote:
Originally Posted by Desi Dude
Thanks Spec
I checked with my attorney about downgrading as my dates will be current under EB3. This is what they said. Do you guys know if anyone faced this like the chinese?
"while it is possible to change preference categories, it is not recommended. It could adversely affect you at the interview stage of your green card process when the officer sees that you changed from EB2 to EB3 and inquires why you did so. It is also important to remember that while EB3 is currently ahead of EB2, it could (and likely will) switch back at any time."
Every attorneys are saying pretty much similar stuff. Even with all the rejections and scrutiny happening with USCIS, and even after your own lawyers explanation and with a 2009 PD, I am seriously intrigued what motivates you to explore this option? Are you having kids who are aging out? H1 renewal issues?Quote:
Originally Posted by gcvijay
What is stopping you from staying put for another month or 2?
Well, I'm inclined to believe that EB2 INDIA will not move past 2009 May 22nd this FY.
That's baloney Vijay. Don't listen to them.
The GC is sponsored by employer - so the question should be directed at Employer not you.Quote:
Originally Posted by gcvijay
Yeah, My opinion may be biased because I am having an EB3 petition with 2011 dates.
However I am also concerned with people crowding up, if there is no real need for it. Even if the question is directed to your employer, any adverse impact has to be borne by you. Just my biased opinion.
I don't understand the logic here. What scrutiny and rejection are you talking here? If you are applying for H1B extension, then yes. Why would downgrading from EB2 to EB3 pose any additional risk. In fact waiting more would entail more risk by way of additional scrutiny in my opinion.Quote:
Originally Posted by AceMan
I get it, you are in EB3 and you don't want anyone to downgrade.
Iatiam
Touche.Quote:
Originally Posted by qesehmk
Attorneys are supposed to work for their clients. But nowadays they prevent you from geting GCs and lobby hard to make sure the backlogs are not cleared.
Yeah, My opinion may be biased because I am having an EB3 petition with 2011 dates.
However I am also concerned with people crowding up, if there is no real need for it. Even if the question is directed to your employer, any adverse impact has to be borne by you. Just my biased opinion.
if u never filed AOS I think u should go ahead and file with ur previous employer under Eb3.
If u already have ead then there is no point in downgrading.
I do agree with ur attorney that things can flip here anytime. Because it’s just the filing dates that are moving for eb3 and not FAD. Most eb2 guys before mar 15th should have already received their GC in the last quarter of fy18 and July inventory does not reflect these approvals. So I don’t agree with u on that may 2009 by end of fy19, because of no interview advantage CO tends to apply SO to EB2I, in the last quarter(I see eb2I getting approvals now, even when dates are not current) Only eb2i has this advantage. End of fy19, eb2i may touch sept 2009, at least.
Just my personal opinion..