Reverse Porting EB2 --> EB3 Discussion

[h1bh1bh1b]

My priority date is 1st sep 2009 and moved from EB3 to EB2. And do not have EAD.
But since EB3 has Oct1st ,Am I eligible to file under EB3 without porting back ?

My lawer says,I can.
My friends lawer said , not sure.

I am trying to get opinion from one more lawyer. But like to know if any one of you from the same boat?

Thanks

[apniceone]

My EB2 PD is Sep 2010 . If i ask my company to file for EB3 - I140, in case of any issues with EB3- I140 does my EB2-I140 still valid and can be used for I485?

[delguy]

My priority date is 1st sep 2009 and moved from EB3 to EB2. And do not have EAD.
But since EB3 has Oct1st ,Am I eligible to file under EB3 without porting back ?

My lawer says,I can.
My friends lawer said , not sure.

I am trying to get opinion from one more lawyer. But like to know if any one of you from the same boat?

Thanks

yes you are as long as your company supports you and provide you the needed documents. may be the other lawyer dont want to make a comment without looking at all the facts of the case and used the generic "not sure" answer. However, your company lawyer has all the facts and his answer is what you should go with.

[Desi Dude]

My priority date is 1st sep 2009 and moved from EB3 to EB2. And do not have EAD.
But since EB3 has Oct1st ,Am I eligible to file under EB3 without porting back ?

My lawer says,I can.
My friends lawer said , not sure.

I am trying to get opinion from one more lawyer. But like to know if any one of you from the same boat?

Thanks

That would not be called porting. You already have approved EB3 & EB2 I-140s. You just need to send an email to USCIS asking them to use EB3 I-140 instead.

[HarepathekaIntezar]

That would not be called porting. You already have approved EB3 & EB2 I-140s. You just need to send an email to USCIS asking them to use EB3 I-140 instead.

First AOS has to be filed in EB3, after filing AOS, if USCIS asks a question, then reply. From what has been described here, I do not see anything that would require any clarification. It is a straight forward case in EB3 with no complications.

[HarepathekaIntezar]

My EB2 PD is Sep 2010 . If i ask my company to file for EB3 - I140, in case of any issues with EB3- I140 does my EB2-I140 still valid and can be used for I485?

Ask the question to the lawyer who filed those docs bro.

[apniceone]

I didn't request my company yet, i even doubt if they allow this. Will check with then when i decided to move forward.

[srimurthy]

Logically looking at the available data, EB2-I from March 2009 - May 2010 has 15000 waiting for their GC already with AOS. They are definitely not going to risk porting down. Also people in EB2 till May 09 who did not do AOS earlier will still go with EB2 considering the extra task for going back to EB3.

This means even with around 8000 visa's a year will take 2 years (September 2020) to clear May 2010. So if you stay with EB2, the earliest you can get an AOS would be 2021.

EB3 is an unknown angel and if the dates move forward like how EB2 did in early 2012, you might get a chance to file 485 as well along with 140 within the next 6 months. So my recommendation would be to wait for next couple of months, and if the filing dates indeed move past your PD in 2010, then go for it in EB3. That way you can mitigate the unknowns and have a better understanding of your options with Points A or B within next 6 months. .

Do we not have a time limit within which a 140 has to be applied for after the PERM approval?

[dev2010]

Time Limit is 6 months

[Spectator]

Time Limit is 6 months

I know a lot of articles say 6 months, but to be pedantic, the certified PERM is valid for 180 days (which may be less than 6 months).

20 CFR 656.30 - Validity of and invalidation of labor certifications.

(b)Expiration of labor certifications.

For certifications resulting from applications filed under this part and 20 CFR part 656 in effect prior to March 28, 2005, the following applies:

(1) An approved permanent labor certification granted on or after July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of the date the Department of Labor granted the certification.

https://www.law.cornell.edu/cfr/text/20/656.30

[HarepathekaIntezar]

https://www.murthy.com/2018/10/02/ne...in-categories/
All the more reason for vacillators to jump in and file!

[tenyearsgone]

https://www.murthy.com/2018/10/02/ne...in-categories/
All the more reason for vacillators to jump in and file!

What are the options to downgrade for folks with I-485 filed in EB2 (2009/2010) who have since changed jobs using AC21 and want to continue with current employer? Would a new Perm be needed?

[HarepathekaIntezar]

What are the options to downgrade for folks with I-485 filed in EB2 (2009/2010) who have since changed jobs using AC21 and want to continue with current employer? Would a new Perm be needed?

Check with your attorney bro. A simple email or phone call should do that.

[AceMan]

What are the options to downgrade for folks with I-485 filed in EB2 (2009/2010) who have since changed jobs using AC21 and want to continue with current employer? Would a new Perm be needed?

If you already have an EAD, and you can be considerate to the people who are following you by staying on with what you have already.

Please strongly discourage any body who already have an EAD in EB2 downgrading to EB3. The money and the fees you pay might be yours, but the resource allocated for your task, can be useful for another candidate who even don't have an EAD.

EB3 final dates are still behind EB2, and no much people beyond July 2007 in EB3 is greened yet.

[asankaran]

If you already have an EAD, and you can be considerate to the people who are following you by staying on with what you have already.

Please strongly discourage any body who already have an EAD in EB2 downgrading to EB3. The money and the fees you pay might be yours, but the resource allocated for your task, can be useful for another candidate who even don't have an EAD.

EB3 final dates are still behind EB2, and no much people beyond July 2007 in EB3 is greened yet.

I don't know where was this consideration when so many legitimate EB2 folks could have greened were sacrificed at the altar of EB3-EB2 porting using the same priority date. I would say as long as it is legal, affordable and possible go for it. It's not worth staying a single day more in this line.

[AceMan]

I don't know where was this consideration when so many legitimate EB2 folks could have greened were sacrificed at the altar of EB3-EB2 porting using the same priority date. I would say as long as it is legal, affordable and possible go for it. It's not worth staying a single day more in this line.

The very fact an Eb2 person considering downgrading to EB3 indicates that his original petition was actually meant to be for EB3 category. Also Eb2 was getting 25 K per year till 2014 while EB3 was not even hitting the mandated quota. So technically there was no sacrifice till 2015 as you imply. Anyways that is a sticky topic and is not the scope of the point what I really meant.
I will rephrase what I said, just in case you missed. Any person who already has an EAD with EB2 (till May 2010) downgrading to EB3 within next 2-3 months is just not worth it at this time, as the final dates of EB3 is still Jan 2009 and we have no seen any flood of EB3 I greened for 2008 itself, while EB2 I has lot of cases of 2009 PD getting greened.


If you have just an EB2 petition beyond 2009 without an EAD, it is a decision worth considering.

[srimurthy]

The very fact an Eb2 person considering downgrading to EB3 indicates that his original petition was actually meant to be for EB3 category. Also Eb2 was getting 25 K per year till 2014 while EB3 was not even hitting the mandated quota. So technically there was no sacrifice till 2015 as you imply. Anyways that is a sticky topic and is not the scope of the point what I really meant.
I will rephrase what I said, just in case you missed. Any person who already has an EAD with EB2 (till May 2010) downgrading to EB3 within next 2-3 months is just not worth it at this time, as the final dates of EB3 is still Jan 2009 and we have no seen any flood of EB3 I greened for 2008 itself, while EB2 I has lot of cases of 2009 PD getting greened.


If you have just an EB2 petition beyond 2009 without an EAD, it is a decision worth considering.

I guess people will look at all options to see where can they get greened faster. I heard the rejection rates for H1 have increased and personally seen a few people with EB3 dates in 2010 and 11 whose H1s got cancelled and are now moving back to India. The DL's have also become an issue as now a days they are only valid till the date of visa or I-94 whereas earlier it was with a grace period of 3 months. So the squeeze is happening in all possible ways

[EB2/eb3]

I guess people will look at all options to see where can they get greened faster. I heard the rejection rates for H1 have increased and personally seen a few people with EB3 dates in 2010 and 11 whose H1s got cancelled and are now moving back to India. The DL's have also become an issue as now a days they are only valid till the date of visa or I-94 whereas earlier it was with a grace period of 3 months. So the squeeze is happening in all possible ways

Hi, what do you mean by h1s got cancelled? Did u mean their extensions got denied?

[AceMan]

I guess people will look at all options to see where can they get greened faster. I heard the rejection rates for H1 have increased and personally seen a few people with EB3 dates in 2010 and 11 whose H1s got cancelled and are now moving back to India. The DL's have also become an issue as now a days they are only valid till the date of visa or I-94 whereas earlier it was with a grace period of 3 months. So the squeeze is happening in all possible ways

Absolutely, I agree with every thing you said here.Got to add, it is not only getting Greened, the bar has now reduced to atleast having an employment based EAD due to the H1 concerns you listed here along with uncertainty of H4 EAD as well.

However it is prudent to inform people who are thinking of porting when they already have an EAD, with the facts based on the available data at this time. The information today is different from the information after a week when the November bulletin is released.

If the filing dates are throttled, or not respected by DHS/USCIS then all these porter people would achieve is getting another EAD which is absolutely useless for them and they just used up another persons option of getting EAD. But again, it is only my opinion, people do whatever they think is appropriate from their individual perspective.

[EB2/eb3]

Absolutely, I agree with every thing you said here.Got to add, it is not only getting Greened, the bar has now reduced to atleast having an employment based EAD due to the H1 concerns you listed here along with uncertainty of H4 EAD as well.

However it is prudent to inform people who are thinking of porting when they already have an EAD, with the facts based on the available data at this time. The information today is different from the information after a week when the November bulletin is released.

If the filing dates are throttled, or not respected by DHS/USCIS then all these porter people would achieve is getting another EAD which is absolutely useless for them and they just used up another persons option of getting EAD. But again, it is only my opinion, people do whatever they think is appropriate from their individual perspective.

Even if Filing dates are honored how is it going to benefit eb2i with EAD? Don’t we actually have to wait for FADs to move?

[AceMan]

Even if Filing dates are honored how is it going to benefit eb2i with EAD? Don’t we actually have to wait for FADs to move?

It is basically porting to EB3 in anticipation of EB3 I FAD movement for FY 19. If a person in EB2 say September 2009 downgraded and got a new EB3 140/485 filed, his petition got approved within 4 months, and if the EB3 FAD moves beyond September 2009 in the mean time he gets his GC. Since his new EB3 petition is not counted in the previous 55 K released earlier, his EB2 140 /485 will not be dropped until EB2 FAD goes past his date.

Based on the PERM for 2009/2010 we have 11000 and 29000 applicants. For 2009 PD, upto May 2009 we had about 4000 (primaries + dependents) cleared in 2014. In all probability we should have anywhere between 35k-40 K people waiting to do AOS for both EB2 and 3. We don't know the split ups yet, but down porting will skew that number a lot and in the end EB3 as usual will get throttled again.

[EB2/eb3]

It is basically porting to EB3 in anticipation of EB3 I FAD movement for FY 19. If a person in EB2 say September 2009 downgraded and got a new EB3 140/485 filed, his petition got approved within 4 months, and if the EB3 FAD moves beyond September 2009 in the mean time he gets his GC. Since his new EB3 petition is not counted in the previous 55 K released earlier, his EB2 140 /485 will not be dropped until EB2 FAD goes past his date.

Based on the PERM for 2009/2010 we have 11000 and 29000 applicants. For 2009 PD, upto May 2009 we had about 4000 (primaries + dependents) cleared in 2014. In all probability we should have anywhere between 35k-40 K people waiting to do AOS for both EB2 and 3. We don't know the split ups yet, but down porting will skew that number a lot and in the end EB3 as usual will get throttled again.

July PI shows 10k in EB2, does this mean the rest 25k -30k are eb3?

[AceMan]

July PI shows 10k in EB2, does this mean the rest 25k -30k are eb3?

10 k included dependents as well. For clarity if we use 1:1 we may have 5 k primaries. So the remaining numbers 30-35 k are people who did not do Aos. They can be in either 2 or 3. Applying the same 1:1 for 2010 we have another 2k primaries for Eb2 who already did aos. My estimate shows that we might have got over 10k Eb gc’s in 2 and 3 for Fy18. The moment of truth will be when they release the statistics in December for 2018

[tenyearsgone]

If you already have an EAD, and you can be considerate to the people who are following you by staying on with what you have already.

Please strongly discourage any body who already have an EAD in EB2 downgrading to EB3. The money and the fees you pay might be yours, but the resource allocated for your task, can be useful for another candidate who even don't have an EAD.

EB3 final dates are still behind EB2, and no much people beyond July 2007 in EB3 is greened yet.

I feel everyone has to evaluate their options and their personal situations (time, health, family, career, opportunity costs, tightening immigration etc etc ) and go with what they need to do. Eb3->Eb2 upgraders, EB1C applicants and everyone else is doing the best they can in their situations..

In any case, my question was to just understand the possibilities and keep myself informed.

[IamGSN]

Hi, I have been following these both these threads, which has been quite helpful to gauge where I am in GC queue. Thanks everyone. Here is my case, my PD is EB2-India July 2009. Initially my case was filed under EB3 and then it was ported to EB2 later. I checked with Attorney whether I can use my EB3 I-140 and file I-485. He mentioned that I can file under EB2 or EB3, as retaining PD will not invalidate EB3 or EB2 filing, both are two seperate things. Now I am confused whether I should go ahead and file under EB3 or wait for some time and decide based on future EB2 movement. What are your predictions, when will my PD be current in EB2 or EB3?