Hi Spec\Other experts
I see the filing date being honoured by USCIS and I'm eligible under EB3. I have two options I would appreciate your suggestions\advice on which one is the most preferred and safe option.
1) I have eb2 with current employer. Downgrade current eb2 with current employer and file a concurrent filing of i-140\i-485?
2) My ex employer still has the valid I-140 petition. Reach out to them and continue the filing of application there.
Appreciate your inputs
Thanks
VK
My PD is Jul 2009 for EB2I. Can I file 140 and 485 downgrading to EB3?Originally Posted by jimmys
Spec
My PD is Jul 2009 for EB2I. Can I file 140 and 485 downgrading to EB3?
This means that EB3I has now officially surpassed EB2I, at least in October. Let the downward porting begin!!
A small matter that you need to spend money for I-140 again, and open yourself for potential additional queries and RFE's all because, you have a chance to get the card 2 minutes earlier. :-D.
People need spices in life.
EB2 and EB3 China have been doing it for a while now. Never heard that it invited additional queries and RFEs. Also, even though I-140 fees may be paid by employer or employee, most good employers pay for it. Mine paid for my AOS applications too. If someone's employer is ready to do it, why not? So depends on how one views it.
EB2I movement will be very lethargic, so I do not see any harm if anyone with a Sep 09 EB2I PD wants to take advantage of the EB3I PD.
I would say this for the people with dependent child. As per the CSPA rules, if you file your I-485 based on the 'Filing Date', then the age of the child is not locked where as if you file your I-485 based on the 'Final Action Date', then the age of the child is locked. The child will not age out.
Most good employers won't even be ready to do the flip-flop in the first place. USCIS made it more interesting since last week with potential for direct denial without RFE.
Again as you rightly said, individuals can decide what is good for them, however if the people downgrade to EB3 based on date assumptions, it is not going to help the people waiting in the queue in both EB2 and EB3.
IMHO, people should be allowed in just 1 queue. If they made a choice to relinquish a queue then it should be the final choice. Somehow, this whole concept of using 2 queue's to get to the destination is not fair. Both for EB2 as well as EB3 folks who are patiently waiting in their respective queues.
I think concurrent I140 and I485 filing is not possible with the filing dates. Please see below instructions from USCIS. In this scenario a visa number is not immediately available at the time of filing. Spec, other gurus please correct me if I am wrong.
https://www.uscis.gov/greencard/conc...ing-form-i-485
Visa Availability and Concurrent Filing
A petition and application may be filed concurrently when there is a visa number immediately available at the time of filing. Concurrent filing is always allowed for all immediate relatives of a United States citizen, since there are no numeric limitations in this category. However, in some categories, even if there is a visa number available at the time of filing, concurrent filing is not allowed as the intending immigrant must have an approved basis of eligibility (i.e. an approved petition) before being allowed to file for adjustment of status.
This is not correct as far as I am aware.
The same laws and regulations govern concurrent filing, whether under FAD or Filing Date.
Some EB categories must have an approved petition before an I-485 can be filed. This is certainly true for EB5, where the I-526 must be approved. I believe that's also the case for some, if not all, EB4 cases, where the I-360 must be approved (I have a recollection about a lawsuit for some subset of EB4).
It's not the case for those EB cases requiring an I-140 petition.
It may not be possible to file the I-140 under Premium Processing if downgrading based on PERM used to file a previous EB2 I-140, since the original could not be sent with the new EB3 I-140 petition. I never saw a definitive answer to this scenario, even though USCIS already have the original PERM. Any clarity that comes from this situation would be welcome.
As another poster noted, USCIS previously clarified that an I-485 received under the Filing Date does not freeze the age of a dependent under CSPA. The age would still freeze once the FAD also became current. As we all know, there can be a long time between those 2 events. I believe it's another example where USCIS is out of step with DOS, again to the potential immigrant's detriment.
My thoughts only on what I have previously seen when China was first in the same situation. I haven't revisited it since.
Without an irritant, there can be no pearl.
What about dependents of people who filed back in 2012 when Filing date and FAD were not there? Or that filing is still technically considered as (new age) filing date?
Thanks for the clarification Spec! I think the premium processing is not available because of the condition#3 below. But, again my understanding may be wrong
https://www.uscis.gov/forms/how-do-i...essing-service
Premium Processing Service is available for the Form I-140 classifications indicated on the chart above provided that the case does not involve:
A second filing of a Form I-140 petition while an initial Form I-140 remains pending;
Labor certification substitution requests;
Duplicate Labor Certification requests (i.e., cases filed without an original labor certification from the Department of Labor), and;
A Form I-140 petition in which a final decision has been made.
USCIS is prescribing these additional conditions of availability on Premium Processing Service for Form I-140 because of their special processing requirements, including locating and transferring other files or documents internally and requesting initial evidence from an outside agency, that make it difficult for USCIS to guarantee that it will process the case within a 15 calendar day period.
The one and only Cut Off Date was advanced back in 2012, so the filing of the I-485 froze the CSPA age.
As you are aware, the Filing Date concept was only introduced in October 2015.
For CP, I believe the filing of the DS-260 freezes the CSPA age, as it meets the "seeks to become an immigrant" test for DOS.
Personally, I don't see why filing an I-485 under the Filing Date doesn't meet the same test for USCIS.
Last edited by Spectator; 09-14-2018 at 05:16 PM.
Without an irritant, there can be no pearl.
Thanks Spec ! Appreciate you taking out time to reply queries on variety of topics.
My lawyer had confirmed to me a couple of months back that premium processing of I140 is not available when labor cert cannot be attached. And he has spent his lifetime doing immigration law.
My thought - EB2I with a PD <= 2010 would be wise to downgrade!
I really like this site, i usually come here to get valuable information.
Spec and Q :
" will you advise some one with June 2009 eb2 to down grade to EB3I?"
Based on perm data and 485 inventory when do you think ( time frame) eb3i will pass eb2i?
Last edited by swordfish380; 09-16-2018 at 01:52 PM.
My advice would be not to downgrade until you actually see EB3-I going "substantially (i.e. 6 months or more)" ahead of EB2.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
If i understand correctly we should get a clear picture in 6 months. There are around 3,000 485 s in inventory till the end of May 2009. In a hypothetical scenario if eb-3 I moves to June 2009 and eb-2 I get stuck in May of 2009. How long will it take to downgrade and get green card approved in eb3i?
Thank you Spec
I thought downgrading would be independent of the EB2 que? If that is not the case, then I would agree with you. But, if both can run in parallel, then I see no need to wait, if money is not an issue. If it was me, I definitely would make that investment, even if I end up not using it.
Well this is what I found out regarding EB3 downgrading when chinese experienced it first.
The December 2013 Visa Bulletin confirms a strange trend we have witnessed recently in some employment based categories: it may be better to be EB3 than EB2. For nationals of China, those with EB2 priority dates have a cutoff date of November 8, 2008, while those with EB3 priority dates have a cutoff date of October 1, 2011, nearly three years later. This raises a strange question: Should you downgrade your EB2 case to EB3? One possible solution is to file a second I-140 visa petition in the third preference category using the prior EB2 labor certification. Almost all labor certification-based EB2 cases qualify to also file under EB3, with no change to the prior labor certification. As applicants can maintain their old EB2 priority date with a new petition, they can also possibly concurrently file an I-485 application to adjust status, if their old priority date is "current" under the EB3. Dependents can file applications for adjustment of status at the same time and each family member can also thereby obtain a work card and permission to travel outside the US without a visa (advance parole). It is important to discuss this strategy with a qualified immigration attorney as there are potential downsides, including the possibility of EB3 retrogression beyond the cutoff date of the EB2. Current Department of State predictions do not indicate a likely EB3 retrogression in the near future, however. Those who are able to file an EB3 I-140 and application to adjust status during December may remain "current" long enough for USCIS to adjudicate their applications for permanent residence (three to six months). Premium processing the I-140 petition is not an option, since USCIS does not permit Premium Processing in cases where a copy of the original labor certification is NOT filed with the petition. Filing the third preference petition does not conflict in any way with the second preference petition, and does not void or nullify it. Moreover, even if the EB3 retrogresses, the application for adjustment of status (I-485) can easily be paired with the petition having the better cutoff date, despite having already been filed.
Yes they are independent. But there is hassle and money involved.
I also think it's a question of courtesy to other immigrants. I am not entirely sure if USCIS would avoid requesting double quota for such cases. I am afraid such duplicate requests could very well deprive other immigrants of their numbers.
For these two reasons I would wait until it is clear that EB3-I is getting ahead of EB2-I.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
I would not think there would be any loss of visas for one and one can't afford to be 'nice' to 'other immigrants', at least the chinese were not
Courtesy is, of course, a matter of personal choice and values. But I wouldn't be so confident on number use. There have been many documented ways how USCIS/DoS have interpreted laws in a questionable manner. I am sorry this is going to be my last on this topic.I would not think there would be any loss of visas for one and one can't afford to be 'nice' to 'other immigrants', at least the chinese were not
Those who want to port of course should do it.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
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