EB2-3 Predictions (Rather Calculations)

[AceMan]

I agree completely. I have ranted on this topic before as well, but companies have been known to file the application in EB3 even when the job and the candidate were eligible for EB2, solely stating that its company policy to do so and no-one raised any eyebrows to that practice. Anyways the PERM is what validates the job, I-140 is just a formality. PERM with job qualified for EB1,the I-140 can be applied in any of the three categories.

I have not downgraded my petition, but when i changed employers I had the option of EB2 or EB3 ( PERM job qualified for EB2), and I chose EB3, employer lawyers gave me that choice. I see nothing wrong in this and if required I don't see anything wrong if I have to upgrade my petition if my calculations are proven wrong.

Vilifying downgrades from EB2 is as obnoxious as vilifying EB3 -> EB2 upgrades

Few missing points in your post. 140 is not a formality. There is no Perm for Eb1. Employment based category means employer has the full authority to decide what category you belong to based on the job you are performing and not necessarily your qualifications.

In a normal scenario downgrades should not happen. It is happening because the people who did Eb2 originally did not qualify for it and now running and applying in regular category when originally they claimed to be exceptional Perm and the skills not available in US.

Eb3-2 upgrade applies with a new perm, Eb2-3 uses the old perm which has excluded people who could not match the exceptional skill requirement. Now when applying for Eb3 the rules are happily ignored to the extend that person who points these are obnoxious and condescending.

What you did is nothing wrong, you had an underlying perm for your Eb3.

So people instead of trying to find fault in my line of thinking, realize the pandemic induced embassy closures might result in 150,000-175,000 visas to Eb category in 2022 from October 21. Once Eb1 is current the biggest beneficiary is going to be Eb2I.

[android09]

Few missing points in your post. 140 is not a formality. There is no Perm for Eb1. Employment based category means employer has the full authority to decide what category you belong to based on the job you are performing and not necessarily your qualifications.

In a normal scenario downgrades should not happen. It is happening because the people who did Eb2 originally did not qualify for it and now running and applying in regular category when originally they claimed to be exceptional Perm and the skills not available in US.

Eb3-2 upgrade applies with a new perm, Eb2-3 uses the old perm which has excluded people who could not match the exceptional skill requirement. Now when applying for Eb3 the rules are happily ignored to the extend that person who points these are obnoxious and condescending.

What you did is nothing wrong, you had an underlying perm for your Eb3.

So people instead of trying to find fault in my line of thinking, realize the pandemic induced embassy closures might result in 150,000-175,000 visas to Eb category in 2022 from October 21. Once Eb1 is current the biggest beneficiary is going to be Eb2I.

The last paragraph of your post is most interesting. While there may be spill over of about 150,000 - 175,000 visas to the EB category from the Family Based category, why do we assume that these will be issued? It is correct insofar that it may push the dates ahead due to statutory requirements, but what that additional flow means remains to be seen in outcomes. We already know the USCIS struggles to issue 140,000 regular EB based visas with many being wasted every year due to systemic inefficiencies and process factors that run the clock out. Now we're saying, yeah sure let's add another 150,000 visas to your pile to do what you already do not do.

[RVSree]

My Background
PD: Apr 2011 in EB2, 15+ years of H1B life
Status: Filed for AOS, EAD, AP in Oct-2020 and rec'd receipt# by Nov-2020, currently waiting for Biometrics appointment notice
H4 Child: My son is in college (freshmen)

I have a question, need some consultation:
Assuming USCIS utilize available SO for FY-2021, we will get our GC this year. If not, then I have to downgrade to EB-3 in order to avoid my son's potential age-out issue (2.5 years left). Since my employer is not supporting downgrade, I am exploring options to change job after 180 days. Wondering whether my new employer can file I-140 in EB-3 directly, i.e. without filing a new PERM based on AC-21 rule.

[Mgajsk]

The last paragraph of your post is most interesting. While there may be spill over of about 150,000 - 175,000 visas to the EB category from the Family Based category, why do we assume that these will be issued? It is correct insofar that it may push the dates ahead due to statutory requirements, but what that additional flow means remains to be seen in outcomes. We already know the USCIS struggles to issue 140,000 regular EB based visas with many being wasted every year due to systemic inefficiencies and process factors that run the clock out. Now we're saying, yeah sure let's add another 150,000 visas to your pile and what you already do not do.

Should'nt we consider the possiblity that USCIS is processing way less FB cases compared to a non Pandemic year and that might give them enough time to process all 150K visas?

[tenyearsgone]

It is happening because the people who did Eb2 originally did not qualify for it and now running and applying in regular category when originally they claimed to be exceptional Perm and the skills not available in US.

Eb3-2 upgrade applies with a new perm, Eb2-3 uses the old perm which has excluded people who could not match the exceptional skill requirement. Now when applying for Eb3 the rules are happily ignored to the extend that person who points these are obnoxious and condescending.

Ace .. your insinuation above that EB2 applicants were not qualified and cheated on it because they want to downgrade now is obnoxious and condescending.

[qesehmk]

Guys if I may say something - people don't always mean what you and I interpret it to be. Our blog's philosophy is to treat all other immigrant groups with respect and never criticize any other immigrant group.

Just follow this yourself and forgive others if somebody says something - it could very well be unintentional.

[vsivarama]

In a normal scenario downgrades should not happen. It is happening because the people who did Eb2 originally did not qualify for it and now running and applying in regular category when originally they claimed to be exceptional Perm and the skills not available in US.

Eb3-2 upgrade applies with a new perm, Eb2-3 uses the old perm which has excluded people who could not match the exceptional skill requirement. Now when applying for Eb3 the rules are happily ignored to the extend that person who points these are obnoxious and condescending.

So people instead of trying to find fault in my line of thinking, realize the pandemic induced embassy closures might result in 150,000-175,000 visas to EB category in 2022 from October 21. Once Eb1 is current the biggest beneficiary is going to be Eb2I.

The USCIS does not break this into rigid categories as you put it. From the USCIS standpoint it is like the following, If a person has demonstrated beyond shadow of doubt that he can compete and perform in 10K competitions (EB2 in this case), it is ridiculous on their part to ask these folks to prove that they have the stamina to compete in 5K competitions (EB3 in this case as it's usually a subset of eb2 requirements). So you can use the same perm to downgrade. Just because someone has participated in 5K competitions does NOT mean that their initial claim of being able to complete in 10K meets are now fraudulent.

I agree that EB2I may benefit from future spillovers if EB1 is current. But for most of the people, a bird in hand is better than two in the bush. Are you willing to let go of the ability to file 485 in hopes of a potential windfall in the future for EB2?

[inspired_p]

Few missing points in your post. 140 is not a formality. There is no Perm for Eb1. Employment based category means employer has the full authority to decide what category you belong to based on the job you are performing and not necessarily your qualifications.

In a normal scenario downgrades should not happen. It is happening because the people who did Eb2 originally did not qualify for it and now running and applying in regular category when originally they claimed to be exceptional Perm and the skills not available in US.

Eb3-2 upgrade applies with a new perm, Eb2-3 uses the old perm which has excluded people who could not match the exceptional skill requirement. Now when applying for Eb3 the rules are happily ignored to the extend that person who points these are obnoxious and condescending.

What you did is nothing wrong, you had an underlying perm for your Eb3.

So people instead of trying to find fault in my line of thinking, realize the pandemic induced embassy closures might result in 150,000-175,000 visas to Eb category in 2022 from October 21. Once Eb1 is current the biggest beneficiary is going to be Eb2I.

When i say I-140 is formality I meant this .... Job validation done at the time of PERM. and it qualifies for say EB2 category ( till now I thought PERM waiver was only for National interest waiver EB1s basically self petition and companies had to file PERM for EB1 applications as well) .I-140 can be filed at any category at or below the bar.

Companies have done so repeatedly under "Company policy".
No Rules are ignored when person files for EB3 based on the PERM that was used for EB2 approval.
As you rightly said EB3->EB2 upgrade will require another PERM ONLY IF the initial PERM was specific to EB3 job. In my case in point, I have confirmed that the PERM filed for me qualifies for EB2, so I will not need a new PERM for EB2 upgrade either.

Expecting people to stay in the buckets when there are no such buckets in law/rule is what I am trying point out here.

[idliman]

Feb 2010 priority date application with TSC. No RFEs since our 2012 application. I changed jobs in 2012 (after 180 day mark) and filed AC21 notification. Supp J was not a thing at that time. I keep thinking whether I should just file Supp J now (without waiting for RFE) just to bump the file.

If you submit a Supp J right now, you will get a RFE in 2-3 months time. That will be the usual one for G-325A, I-693 and maybe employment authorization if you had used EAD. Once you complete that process, your file should be current ready for approval for a period of 2 years from I-693 signature date. We cannot predict what's going to happen in the future: Say JB admin cancels requirement of I-693 for every 2 years OR the processing delays due to rush of new I485 applications. However your thinking is not bad.

[inspired_p]

The USCIS does not break this into rigid categories as you put it. From the USCIS standpoint it is like the following, If a person has demonstrated beyond shadow of doubt that he can compete and perform in 10K competitions (EB2 in this case), it is ridiculous on their part to ask these folks to prove that they have the stamina to compete in 5K competitions (EB3 in this case as it's usually a subset of eb2 requirements). So you can use the same perm to downgrade. Just because someone has participated in 5K competitions does NOT mean that their initial claim of being able to complete in 10K meets are now fraudulent.

I agree that EB2I may benefit from future spillovers if EB1 is current. But for most of the people, a bird in hand is better than two in the bush. Are you willing to let go of the ability to file 485 in hopes of a potential windfall in the future for EB2?

Also the 10K and 5K category is tied to the PERM filed and not the I140 filed.

[vsivarama]

Also the 10K and 5K category is tied to the PERM filed and not the I140 filed.

I stand corrected, Thanks for pointing that one out.

[idliman]

Hi all,

I am new to this forum, migrated here to give it a try from Trackitt. Was wondering what your predictions are for the end of this fiscal year. My priority date is EB-3 India April 2011

Welcome. The fact that USCIS opened up the DF till 2015 shows that they originally expected everyone upto that date to be current before Oct 2021. However, how they are going to do it is not sure. Past trends indicate they will start advancing dates from say May 2021 bulletin or so. How many GCs could they process in 5 months? Do they give up (like the past admin) and refuse to move the dates citing lack of capacity for processing and issuing GCs? No one knows. There are a bunch of folks who filed in 2012 waiting for the PDs to clear 2009 for the past 9 years. All we can wish for is USCIS using and issuing as much GCs as permitted by law. So lately the prediction part of this forum is quiet because the past admin found thousand excuses to systematically delay and deny issuing of GCs.

You can also try whereismygc.com to see how their model is working for your PD. Prediction math is a number game. However, it all depends on the intent of the admin and the agencies to provide immigration benefits to as many people as allowed by law.

[inspired_p]

So people instead of trying to find fault in my line of thinking, realize the pandemic induced embassy closures might result in 150,000-175,000 visas to Eb category in 2022 from October 21. Once Eb1 is current the biggest beneficiary is going to be Eb2I.

This can very well be the case.
EB2-I can very well shoot past EB3-I in FADs , and hence I personally will be keeping an eye out on FADs and will exercise the right to file a separate EB2 with the existing PERM if absolutely required.

People who downgraded to EB3 from EB2 anyways have both Eb2 and EB3 applications to choose from, if EB2 FAD are favorable than EB3 FAD.

And all power to them.

[AceMan]

Ace .. your insinuation above that EB2 applicants were not qualified and cheated on it because they want to downgrade now is obnoxious and condescending.

If the highlighted text is what you felt most related from what I posted, I can't help it.

[AceMan]

When i say I-140 is formality I meant this .... Job validation done at the time of PERM. and it qualifies for say EB2 category ( till now I thought PERM waiver was only for National interest waiver EB1s basically self petition and companies had to file PERM for EB1 applications as well) .I-140 can be filed at any category at or below the bar.

Companies have done so repeatedly under "Company policy".
No Rules are ignored when person files for EB3 based on the PERM that was used for EB2 approval.
As you rightly said EB3->EB2 upgrade will require another PERM ONLY IF the initial PERM was specific to EB3 job. In my case in point, I have confirmed that the PERM filed for me qualifies for EB2, so I will not need a new PERM for EB2 upgrade either.

Expecting people to stay in the buckets when there are no such buckets in law/rule is what I am trying point out here.

I think you are still not fully understanding what I said. People are upgrading and downgrading. If you look at October 2018 filers, almost all the people who downgraded are Eb2 filers who upgraded from Eb3 after 2012. IF they had upgraded before 2011 they would have been able to adjust the status in 2012 itself. For the people who are comparing the perms to 10K and 5K analogy, I have better one. You are paying for 2 buffets and 1 set of buffet is getting wasted. You are using up a valuable resource, when you can do without it. It is not just the rules I am talking about. Once you downgrade you try and apply for premium when it is explicitly not allowed. Now some lawyers found the loop hole and figured out if it goes to the same service center they might accept it. This made sure that all the people started applying for premium and use up the resources when they should not be.

Eb2-3 downgrade is not against the rule, it is the follow up actions.

And the same person is magically going to try and qualify back in EB2 when that dates move forward. I absolutely respect these people for their tenacity. But that does not change the fact that they are aayarams and gayarams.

[AceMan]

The USCIS does not break this into rigid categories as you put it. From the USCIS standpoint it is like the following, If a person has demonstrated beyond shadow of doubt that he can compete and perform in 10K competitions (EB2 in this case), it is ridiculous on their part to ask these folks to prove that they have the stamina to compete in 5K competitions (EB3 in this case as it's usually a subset of eb2 requirements). So you can use the same perm to downgrade. Just because someone has participated in 5K competitions does NOT mean that their initial claim of being able to complete in 10K meets are now fraudulent.

I agree that EB2I may benefit from future spillovers if EB1 is current. But for most of the people, a bird in hand is better than two in the bush. Are you willing to let go of the ability to file 485 in hopes of a potential windfall in the future for EB2?

If you think Eb3 is a subset of EB2 why do they even keep it separate? I understand that you want getting into 485 queue and having an EAD and using AP is much better than being on H1. I respect that it is a common sense thing to do. Most probably you think I would have also done it. However if the scenario for new round of spill over happens from family and Eb2 I is the beneficiary can you honestly say that you will stay back in EB3 or will you try and attempt to get to Eb2 (with the same bird story!!!)

If you did not do it, I can assure you 95% of the people who downgraded are going to try that. You will still ask what is the problem with that? I would still say those guys are using up the USCIS resources for stuff which should not have been wasted if they had stayed put in the first place.

[AceMan]

People who downgraded to EB3 from EB2 anyways have both Eb2 and EB3 applications to choose from, if EB2 FAD are favorable than EB3 FAD.

And all power to them.

Are you sure with that? May be you want to check the difference between an amended and a new petition.

[texas_]

If you think Eb3 is a subset of EB2 why do they even keep it separate? I understand that you want getting into 485 queue and having an EAD and using AP is much better than being on H1. I respect that it is a common sense thing to do. Most probably you think I would have also done it. However if the scenario for new round of spill over happens from family and Eb2 I is the beneficiary can you honestly say that you will stay back in EB3 or will you try and attempt to get to Eb2 (with the same bird story!!!)

If you did not do it, I can assure you 95% of the people who downgraded are going to try that. You will still ask what is the problem with that? I would still say those guys are using up the USCIS resources for stuff which should not have been wasted if they had stayed put in the first place.

If this situation comes I would keep both the birds in hand and leave none in bush!! Keepin' all my birds in a row...

[phkb2020]

Just out of curiosity, how many of Eb2I 2012 filers with priority dates between July 09 and May 2010 downgraded to EB3 when EB3 FAD dates moved past EB2?
I for one have stayed put. Folks in my friend circle have stayed put. Any folks in the forum who have downgraded?

[alpha0]

The USCIS does not break this into rigid categories as you put it. From the USCIS standpoint it is like the following, If a person has demonstrated beyond shadow of doubt that he can compete and perform in 10K competitions (EB2 in this case), it is ridiculous on their part to ask these folks to prove that they have the stamina to compete in 5K competitions (EB3 in this case as it's usually a subset of eb2 requirements). So you can use the same perm to downgrade. Just because someone has participated in 5K competitions does NOT mean that their initial claim of being able to complete in 10K meets are now fraudulent.

I agree that EB2I may benefit from future spillovers if EB1 is current. But for most of the people, a bird in hand is better than two in the bush. Are you willing to let go of the ability to file 485 in hopes of a potential windfall in the future for EB2?

During PERM process, you eliminated all americans who could do 5k saying that this job needs 10k and got labor cert for this immigrant, and now you are saying that this job infact only needs to run 5k, entire labor cert is invalid if you see this way.

[AceMan]

If this situation comes I would keep both the birds in hand and leave none in bush!! Keepin' all my birds in a row...

And the bird we are talking about is a GC. Do you need 2 or 3 GC?s for yourself?

[incredible]

Hi All

I have received an RFE for I485 of both mine and spouse's. The actual document has not yet arrived, so I do not know what the RFE is for. I am expecting it to be a regular RFE for medicals, G325 and/or Supplement J. Though, i am not sure why USCIS will request for supplement J. I have changed jobs in Feb of 2020 and submitted supplement - J as part of it and it is not yet approved from USCIS. Also, like most of the folks I did receive RFE for Supplement J, medicals back in 2018 and have submitted at that time. Also, the supplement J submitted back in 2018 was approved in six months. Just for your information I have filed 485 back in 2012 with NSC and priority date of EB2 02/01/2010.

[incredible]

Hi All

I have received an RFE for I485 of both mine and spouse's. The actual document has not yet arrived, so I do not know what the RFE is for. I am expecting it to be a regular RFE for medicals, G325 and/or Supplement J. Though, i am not sure why USCIS will request for supplement J. I have changed jobs in Feb of 2020 and submitted supplement - J as part of it and it is not yet approved from USCIS. Also, like most of the folks I did receive RFE for Supplement J, medicals back in 2018 and have submitted at that time. Also, the supplement J submitted back in 2018 was approved in six months. Just for your information I have filed 485 back in 2012 with NSC and priority date of EB2 02/01/2010.

Also, I have a quick question and need guidance from seasoned folks here. I am in discussion with one of the top 4 consulting firms and my offer may be finalized in the next 2 to 3 weeks. With this RFE and if it asks for Supplement J, should I submit everything now and wait for GC before moving on to the large company (not necessarily sure, if they would wait though). Or should I ask the new company to speed up the process and provide me the supplement J and then file response to the RFE?? Any suggestions are appreciated.

[idliman]

Hi All

I have received an RFE for I485 of both mine and spouse's. The actual document has not yet arrived, so I do not know what the RFE is for. I am expecting it to be a regular RFE for medicals, G325 and/or Supplement J. Though, i am not sure why USCIS will request for supplement J. I have changed jobs in Feb of 2020 and submitted supplement - J as part of it and it is not yet approved from USCIS. Also, like most of the folks I did receive RFE for Supplement J, medicals back in 2018 and have submitted at that time. Also, the supplement J submitted back in 2018 was approved in six months. Just for your information I have filed 485 back in 2012 with NSC and priority date of EB2 02/01/2010.

It is NSC and you have expired medicals that were submitted in 2018. It may be that NSC is doing another round of RFEs for folks till May 2010 to keep their files updated and ready to be approved. So may be it is just for I-693 only or they used a standard template and asked for usual things. Just wait.

Also, I have a quick question and need guidance from seasoned folks here. I am in discussion with one of the top 4 consulting firms and my offer may be finalized in the next 2 to 3 weeks. With this RFE and if it asks for Supplement J, should I submit everything now and wait for GC before moving on to the large company (not necessarily sure, if they would wait though). Or should I ask the new company to speed up the process and provide me the supplement J and then file response to the RFE?? Any suggestions are appreciated.

It all depends on the deadline for RFE. Can you get a new offer and at the same time meet the RFE deadline? If you do a I485J with the new company then there is no need for you to do another I485J. However, I am suspecting that once your file is complete after replying to RFE from the present company, I don't think the AO will look for anything more. He/she will approve and go. Anyway no matter what meet the RFE deadline (otherwise your I485 is abandoned). I prefer to go with new I485J. But it does not matter a lot. You can always request them to send another I485J after joining the new company. Wait for replies from others who might have done similar thing and then decide.

[AceMan]

During PERM process, you eliminated all americans who could do 5k saying that this job needs 10k and got labor cert for this immigrant, and now you are saying that this job infact only needs to run 5k, entire labor cert is invalid if you see this way.

On point without any ambiguity.