EB2-3 Predictions (Rather Calculations) 2015-2020

[idliman]

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.

As per my understanding, if you are not with the same employer who originally filed PERM and I-140, you have to do a new PERM and I-140. I am sorry that you have to go through the kid age-out scenario.

The age-out stops only when the "FA" dates are current. Right now for your PD, only the "DF" is current. So your son still faces an age-out scenario when he is 21. I would suggest you to count 180 days, use AC21 and port to a new employer and file PERM/I-140 EB3 application immediately. PERM / I-140 if you speed through can be completed in one year time. The "FA" for your PD is most likely to be current in EB3 before EB2.

I know people are very optimistic about big movement of EB2 this year (including myself). But until that happens nothing is certain. You have a pressing deadline / age-out scenario. So take whatever steps you can to lock your son's age. So IMO you need to have applications in both EB2 & EB3. The waiting game from 2012 has given me the experience of doing whatever we can open multiple lanes for path to GC. If EB2 FA becomes current that will be great. However, we need to also prepare for the worst case. Good luck.

Edit: Forgot to mention that prepare for AC21. Get copies of approved PERM so that you can have a)SOC code, b) Job title and c)Job description. If employer is not sharing PERM, use FOIA to get older copies.

[AceMan]

Downgrade Eb2 to EB3 as new application will keep the i140 of EB2 in tact. If EB2 moves fast they dont have to upgrade. They just have to use the i140 to files AOS again. This is my understanding.

Let us take it step by step. The first line filing it as a new application will keep EB2 140 intact is a correct understanding.

However to my understanding the law firms are filing the EB3 140 as amended citing some Neumann memo which claims a new petition with an expired labor can be rejected.

So the people can confirm with their attorney's if their downgrade petition was new or amended.

[inspired_p]

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.

Again , thats why i keep repeating the 10k and 5K differenciation is tied to the PERM and not i-140. Hence i-140 can be applied in lower category only. I-140 is not deciding which americans got overlooked ; PERM process is and thats still kosher

[AceMan]

Agree with the logic but unfortunately EB immigration in this country has no logic, only LAW. If there is a logic then I don't believe people waiting in line for 10-15 years. I think everyone (from backlogged countries) trying their best to get the GC faster in what is allowed under the LAW. I don't blame the individual but the immigration system.

No, you cannot have both ways. These are the people who having being fighting for fairness and when a chance comes they have no qualms to attempt to run in the middle of 2 lane road. This has to be pointed as a clear case of hypocrisy when the individual should not have been in Eb2 in the first place, now downgrading to Eb3 and when chance comes they want to run back to EB2 citing the law does not prevent them from doing it.

[EB2IndSep09]

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.

Sorry to hear about your situation, there are thousands of families in the same situation unfortunately due to the obvious know reasons to all.
I believe your son's I485 petition also has been applied in Oct 2020.
Why do you think he is going to age out? As per CSPA Age calculation, your son's age at any point when the visa numbers are available is going to stay as 18.5 Years based on the AOS filing date.

https://www.uscis.gov/policy-manual/...rt-a-chapter-7 - Refer to "2. Child Status Protection Act Age Calculation" under "F. Family and Employment-Based Preference and Diversity Immigrants"

Only benefit you might have is to get the card earlier if EB3 moves faster than EB2 which no one can predict. Take an appropriate decision weighing all facts.

[inspired_p]

No, you cannot have both ways. These are the people who having being fighting for fairness and when a chance comes they have no qualms to attempt to run in the middle of 2 lane road. This has to be pointed as a clear case of hypocrisy when the individual should not have been in Eb2 in the first place, now downgrading to Eb3 and when chance comes they want to run back to EB2 citing the law does not prevent them from doing it.

I am done , keep judging people based on your biased misconceptions

[LeoAugust]

Let us take it step by step. The first line filing it as a new application will keep EB2 140 intact is a correct understanding.

However to my understanding the law firms are filing the EB3 140 as amended citing some Neumann memo which claims a new petition with an expired labor can be rejected.

So the people can confirm with their attorney's if their downgrade petition was new or amended.

If the they amend the existing i140 and it get rejected it will put the case in jeopardy. Hence most of the case instead of going for amend they go for new application. incase new one get rejected person can have their already approved i140 to use. He may not take advantage of AOs but he will be safe with i140 and continue with h1b. I am pretty clear and confirmed on this understanding.

[Transformer]

No, you cannot have both ways. These are the people who having being fighting for fairness and when a chance comes they have no qualms to attempt to run in the middle of 2 lane road. This has to be pointed as a clear case of hypocrisy when the individual should not have been in Eb2 in the first place, now downgrading to Eb3 and when chance comes they want to run back to EB2 citing the law does not prevent them from doing it.

You are entitled to your opinion and everyone to their own, lets respect each other. What ultimately matters is how USCIS perceives it. They are fine with it so far. I am not willing to continue further on this topic.

[vsivarama]

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.

You are undercutting your own argument here. We are not filing a new perm here to say job responsibilities are in fact less. Just using the same perm to qualify in EB3. If you have 20 years of experience and want to apply for a mid-level developer position requiring 5 years of experience, I do not see any legal violations here. That's how USCIS sees this. My proof for the fact is the 1000s of downgrade applications approved so far by USCIS in last decade or so. Ask yourself this, when was the last time USCIS went above and beyond the letter of the law to help out hapless immigrants?

[AceMan]

I am not a judge, I am just pointing out the facts at the crowd who have been wronged for a long time in their search for fairness. From 2010-2020 every body qualified on EB2, every other Eb3 rushed to clog the EB2 irrespective of where they are with the dates. From 2018 it is the reverse path.

This was clear when Eb2 I is still not reached from the dates it reached 9 years back. And in 2018 when EB3 moved forward the downgrades held it back with no forward movement. These are hard facts and not my bias or misconception. This site provides a wealth of information on the number of Eb3 applicants for more than a decade.

Don't blame the fact checker when you are shown the truth. Closing the eyes, or accusing me of bias and misconception just don't change the fact the people changing the queue slows down the process.

It is an individual choice of what to do. I am clearly showing the consequences of wrong choices over the last 10 years and repeating the same mistake is not going to help anybody. All it results in people jumping from one bucket to another. Yes, the lawyers are benefited from it.

[mitul75]

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?

As far as I know, most family based green cards are issued at local US embassies/consulates and the USCIS service centers are not involved. So the workload for FB visas is distributed to a bigger workforce. EB GCs on the other hand are mostly issued by USCIS service centers and due to COVID, most of these centers are running with a depleted workforce. Without a dramatic increase in staffing, I imagine most of the FB-EB spillover visas will get wasted.

[vsivarama]

Don't blame the fact checker when you are shown the truth. Closing the eyes, or accusing me of bias and misconception just don't change the fact the people changing the queue slows down the process.

It is an individual choice of what to do. I am clearly showing the consequences of wrong choices over the last 10 years and repeating the same mistake is not going to help anybody. All it results in people jumping from one bucket to another. Yes, the lawyers are benefited from it.

So through your fact based judgment can you show how many EB3/EB2 visas got wasted in the past decade because of EB3 to EB2 upgrades? It may slow down the process and add confusion. But we have done all the number crunching in this forum and have found no wastage. If someone qualifies in EB3, great a slot opens up in EB2 and vice versa. As you pointed out, no one is getting 2-3 GCs. If USCIS wants to sit on the cases it will find a reason to do so. The same goes in the reverse.

P.S. If you want to talk about last years wastage, we all know upgrades/downgrades were not the cause of it.

[aGCHopefull]

Sorry to hear about your situation, there are thousands of families in the same situation unfortunately due to the obvious know reasons to all.
I believe your son's I485 petition also has been applied in Oct 2020.
Why do you think he is going to age out? As per CSPA Age calculation, your son's age at any point when the visa numbers are available is going to stay as 18.5 Years based on the AOS filing date.

https://www.uscis.gov/policy-manual/...rt-a-chapter-7 - Refer to "2. Child Status Protection Act Age Calculation" under "F. Family and Employment-Based Preference and Diversity Immigrants"

Only benefit you might have is to get the card earlier if EB3 moves faster than EB2 which no one can predict. Take an appropriate decision weighing all facts.

Could someone please confirm this? If the I 485 has been filed for the child when he/she was 18.5 years of age (but the final action date was not current), would child still age out at 21 if FAD is still not current at that point (when child turns 21)?

[Transformer]

I believe your son's I485 petition also has been applied in Oct 2020.
Why do you think he is going to age out? As per CSPA Age calculation, your son's age at any point when the visa numbers are available is going to stay as 18.5 Years based on the AOS filing date..

CSPA is only applied if dates are in Final Action Dates not in Date of filing chart. Child date is not locked until his PD moves to FAD. Unfortunately nothing much we can do, even I have a kid aging out in 4 years. With May 2011 date my attorney advised not to file AOS for the kid as it may create problems in future when he wants to change to F1.

[aGCHopefull]

Could someone please confirm this? If the I 485 has been filed for the child when he/she was 18.5 years of age (but the final action date was not current), would child still age out at 21 if FAD is still not current at that point (when child turns 21)?

reading https://www.uscis.gov/policy-manual/...rt-a-chapter-7

Instead of freezing the age of the applicant on the filing date, CSPA provides a formula by which the applicant’s CSPA age is calculated that takes into account the amount of time the qualifying petition was pending.

Age at time of visa availability - Pending time = CSPA Age

Seems like this pending time is based on when actually visa number was available - when FAD got current

Can someone please confirm this?

[inspired_p]

I am not a judge, I am just pointing out the facts at the crowd who have been wronged for a long time in their search for fairness. From 2010-2020 every body qualified on EB2, every other Eb3 rushed to clog the EB2 irrespective of where they are with the dates. From 2018 it is the reverse path.

This was clear when Eb2 I is still not reached from the dates it reached 9 years back. And in 2018 when EB3 moved forward the downgrades held it back with no forward movement. These are hard facts and not my bias or misconception. This site provides a wealth of information on the number of Eb3 applicants for more than a decade.

Don't blame the fact checker when you are shown the truth. Closing the eyes, or accusing me of bias and misconception just don't change the fact the people changing the queue slows down the process.

It is an individual choice of what to do. I am clearly showing the consequences of wrong choices over the last 10 years and repeating the same mistake is not going to help anybody. All it results in people jumping from one bucket to another. Yes, the lawyers are benefited from it.

I have no bones to pick on your opinion if moving from eb2 to eb3 or vice versa is beneficial or not. It might be counter productive.I think I have amply proven that based on PERM ; it is perfectly okay to file both applications ; by the letter of the law as well as the essence of the law. All the power to people who do that.

[vsivarama]

Could someone please confirm this? If the I 485 has been filed for the child when he/she was 18.5 years of age (but the final action date was not current), would child still age out at 21 if FAD is still not current at that point (when child turns 21)?

Unfortunately Filing Date doe NOT lock a child's age. The link specifically refers to Final Action Date. Hope it changes in the current administration. So answer to your question is that the child will still age out. Hope there is swift relief to the thousands facing this ordeal.

[mitul75]

Another way to look at the EB1-EB2-EB3 debate is we all are applying for a future job, and the employer will do whatever is in the best interest of the company at the time of hiring the employee. If a company has a Job A open today that requires hiring of candidates with "advanced degrees or exceptional ability", then they will hire someone that best fits the bill, whether it's a US citizen or a foreign national.
Once that someone, who happens to be from India without a green card, becomes a senior and valued member of the company, the company will do whatever it can to keep the employee happy and continue with the job. At that point in time, if a opportunity opens up for this employee to legally downgrade his GC petition and fast track his GC process, then I don't think the company will think twice to apply for an I-140 petition to downgrade, since it will be in the best interest of the company not to lose a senior and experienced staff who can now do both Job A requiring "advanced degrees or exceptional ability", and Job B that only needs a "skilled worker" in the same job category, rather than hiring a new candidate, let's say a US citizen, who would now need to be trained at a higher cost to do Job B.
After all, it's a free-market economy.

[aGCHopefull]

Unfortunately Filing Date doe NOT lock a child's age. The link specifically refers to Final Action Date. Hope it changes in the current administration. So answer to your question is that the child will still age out. Hope there is swift relief to the millions facing this ordeal.

What happens if FAD becomes current for a child (let's say May 11) but somehow gets retrogressed again?

[AceMan]

So through your fact based judgment can you show how many EB3/EB2 visas got wasted in the past decade because of EB3 to EB2 upgrades? It may slow down the process and add confusion. But we have done all the number crunching in this forum and have found no wastage. If someone qualifies in EB3, great a slot opens up in EB2 and vice versa. As you pointed out, no one is getting 2-3 GCs. If USCIS wants to sit on the cases it will find a reason to do so. The same goes in the reverse.

P.S. If you want to talk about last years wastage, we all know upgrades/downgrades were not the cause of it.

From 2010-2017 I have followed the EB3 specific numbers which can be verified in DHS statistics as well as the Immigration year book. EB3 had a shortage of about 17,000 for these years, however those numbers were used by other EB categories so it ends up as a zero sum game which prompts you to say no wastage. Those EB3 numbers were a loss for EB3 India applicants. Now you may say they were compensated by upgrading to EB2.

Let us look at October 2018 when the first instance of reverse usage came into prominence. For FY 2019 EB3 I got more than 5000 visas however the dates moved back mid year.

2020 is a one of the kind year with covid and we got only about 138 K for entire EB category when it was supposed to get 156 K.

Any loss of visa when people are waiting directly impacts the backlogged people. A person will downgrade their petition citing USCIS accepts it, valid case itself, now what do you have to say about that person pushing the 140 petition to premium when dates are not even current, and that is clearly forbidden by the law, but people still do it because of some loop hole?

[AceMan]

I have no bones to pick on your opinion if moving from eb2 to eb3 or vice versa is beneficial or not. It might be counter productive.I think I have amply proven that based on PERM ; it is perfectly okay to file both applications ; by the letter of the law as well as the essence of the law. All the power to people who do that.

It is perfectly legit to do that. My wish of anything different is not the USCIS rule. I was clearly pointing out the people who have downgraded now by amending their petition is going to fill up the pages in October 21 on how they are entitled to be back in EB2 queue.

[idliman]

What happens if FAD becomes current for a child (let's say May 11) but somehow gets retrogressed again?

The first time the FA becomes current for you, the child's age gets locked. It does not matter if FA dates keep current or retrogress. The child will get his/her GC.

The unfortunate thing is that this is just a policy by USCIS. They can change it to "DF" dates instead of "FA" with some activism. Don't know why they were so rigid on locking dates only for "FA".

[vsivarama]

What happens if FAD becomes current for a child (let's say May 11) but somehow gets retrogressed again?

Then the child's age will get locked in at that date. Does not matter if you get your GC after a decade. The child is protected.

[Transformer]

What happens if FAD becomes current for a child (let's say May 11) but somehow gets retrogressed again?

It will lock the age even if it was retrogressed later. I have friends who applied in 2012 and haven't received GC yet (there was only FAD at that time). One of friends kid is 24 now, but his age is locked when he filed. I don't have to tell you that dates retrogressed later for them.

[AceMan]

If the they amend the existing i140 and it get rejected it will put the case in jeopardy. Hence most of the case instead of going for amend they go for new application. incase new one get rejected person can have their already approved i140 to use. He may not take advantage of AOs but he will be safe with i140 and continue with h1b. I am pretty clear and confirmed on this understanding.

I have been searching around, and it seems that Neufield memo from 2007 (https://www.aila.org/infonet/uscis-neufeld-ac21-memo) states something else. The interpretation which is disputed is saying that possibility of rejection for NEW petition is high.