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/tra...ober-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-dow...-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.