EB2-3 Predictions (Rather Calculations)

[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.

[inspired_p]

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.

AND they are ENTITLED .. that's the point !

[delguy]

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.

EB3 folks did exactly the same for last 10 years, upgrading to EB2 and jumping the queue. I am EB2 with June 2010 PD and never complained. If EB2 is doing the same which is allowed ny USCIS, there shouldnt be any issue now. I encouraged 2 of my friends to downgrade to EB3 and take advantage of date movement. EB2 /3 is just same. We go with whichever we seems to think is going to move faster.

[LeoAugust]

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.

If the child get a EAD based on the AOS filled on filling date, wont he be protected? Just wish to know

[LeoAugust]

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.

All new petitions are getting approved with PP. Those who files PP without waiting they are asked to apply later. Also there are case of i140 rejection as well but it is very less compare to approve.

[moonlight]

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.

What documentations are required to evidence the locking of Child age in case of retrogression?

[Transformer]

What documentations are required to evidence the locking of Child age in case of retrogression?

Nothing. It is done automatically by USCIS.

[vsivarama]

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.

If everyone stayed put in their queues over the last decade, EB2 may had been in 2011 or 2012 and EB3 would have been in 2007-2008 range. Now both are moving a few months apart. So it depends on the perspective if you want to call it wastage.

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.

I 100% agree with you here.

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?

I certainly do not know about loopholes here so will not comment on them. If it is forbidden by law USCIS should reject premium processing, period. If they are accepting it then I would say it's either legit or that's how they interpreted the law.

[Transformer]

If the child get a EAD based on the AOS filled on filling date, wont he be protected? Just wish to know

No. EAD is just a biproduct of pending AOS. Once they age out their AOS is rejected, EAD is invalidated, unless FAD is current before age out.

[LeoAugust]

No. EAD is just a biproduct of pending AOS. Once they age out their AOS is rejected, EAD is invalidated, unless FAD is current before age out.

Oh... that's scary. I did not know that. I thought age locked once child has EAD. This is serious. Many of the folk's child aging out is not aware of this it seems.

[incredible]

Thank you for your quick reply. It is strangely great feeling of relief mixed with anxiety. Great feeling for potentially getting greened in the coming months. Anxiety on new company discussions, etc. Anyways, I will wait and see what is in there and also wait for other experts comments.

Seems USCIS is working in overdrive suddenly. Supplement J that I have applied back in 2020 Jan and was pending for long time, suddenly got approved today. This makes me believe that the RFE (not yet received the documents) may only be related to medicals. There may be a good chance of dates advancing to early 2010 (FAD) very soon for EB2 based on sudden activities that we are seeing.

[AceMan]

If everyone stayed put in their queues over the last decade, EB2 may had been in 2011 or 2012 and EB3 would have been in 2007-2008 range. Now both are moving a few months apart. So it depends on the perspective if you want to call it wastage.

The spill over works with EB1,EB2 and Eb3. People grow up in the career and EB3-2 is natural progression. Eb2 has 320,000 applicants and Eb3 has 69,000 applicants. You don't grow downwards in your skill unless you change a job or apply for a new position.

I certainly do not know about loopholes here so will not comment on them. If it is forbidden by law USCIS should reject premium processing, period. If they are accepting it then I would say it's either legit or that's how they interpreted the law.

Since you are comfortable with analogies I will give you an example. There are items available at display in Walmart and may other places. People "accidentally" keep that items in the bag and they walk out. When caught they feign innocence. I have seen lot of people trivializing shop lifting when it is a very serious offense which can lead to a GC denial.

USCIS rule book says premium processing not allowed when the original PERM is not attached. Premium process is the ability to use a resource for working on an item which requires immediate assistance and this limited resource is used for something which should not be even applied in the first place.

You wanted to know earlier that downgrades are not a reason for delay. I can say that after more than 100 days of applying my status is still finger print received which is the status for a vast majority of applicants. With no applicants from around the world what else do you think is the reason for it?

[ak7419]

Seems USCIS is working in overdrive suddenly. Supplement J that I have applied back in 2020 Jan and was pending for long time, suddenly got approved today. This makes me believe that the RFE (not yet received the documents) may only be related to medicals. There may be a good chance of dates advancing to early 2010 (FAD) very soon for EB2 based on sudden activities that we are seeing.

Just an FYI. There are lot of folks like me who got current five months ago and have not received any RFE.

[vsivarama]

The spill over works with EB1,EB2 and Eb3. People grow up in the career and EB3-2 is natural progression. Eb2 has 320,000 applicants and Eb3 has 69,000 applicants. You don't grow downwards in your skill unless you change a job or apply for a new position.

I have already made the case as to how USCIS looks at it. No one is saying they grow downwards (you could make that case only if a different PERM was required). If in fact USCIS ran with your logic, they could kick everyone out of EB3 who have been waiting for a decade as they failed to show natural progression for over a decade. I will not engage further on this since nothing I say will change your opinion on people who downgraded. It does not really matter if someone thinks I am fraudulent, my conscience is clear.

Since you are comfortable with analogies I will give you an example. There are items available at display in Walmart and may other places. People "accidentally" keep that items in the bag and they walk out. When caught they feign innocence. I have seen lot of people trivializing shop lifting when it is a very serious offense which can lead to a GC denial.

USCIS rule book says premium processing not allowed when the original PERM is not attached. Premium process is the ability to use a resource for working on an item which requires immediate assistance and this limited resource is used for something which should not be even applied in the first place.

I do not know what point you are trying to make here. It looks like an apples to oranges comparison to me. If the law says you are not allowed to buy beer under the age of 21, then if you are caught not having paid for it you do NOT get the option to pay for it and leave (if you are a minor). USCIS is under NO OBLIGATION to premium process an application if it is against the law (If it's a grey area then it's a different issue). Not sure how much more clear I can be on this. You can try and premium process your 485 or EAD and see what the USCIS has to say about it.

You wanted to know earlier that downgrades are not a reason for delay. I can say that after more than 100 days of applying my status is still finger print received which is the status for a vast majority of applicants. With no applicants from around the world what else do you think is the reason for it?

You can read my previous statements, I said we had not seen visa wastage as a result of upgrades in last decade. I did acknowledge there will be delays and confusion. As for your inconvenience, I do apologize for having the temerity to downgrade my case. I should have known better.

[monsieur]

......... If in fact USCIS ran with your logic, they could kick everyone out of EB3 who have been waiting for a decade as they failed to show natural progression for over a decade. ...........

When I 1st applied for GC, I had BE + MS + 4.5 years of experience. It was Sr Engineer role and Fragomen deemed me as EB2 category back in 2010. Since then I moved 2 jobs, went upto Principal Engieer role and all my employer used Fragomen and filed it in EB-2.

But I switched job again in late 2019 and took Dev Mgr role. New firm is in cloud services and Fragomen is their immi team. Fragomen told me as Individual Contributer engineer role, yes I am eligible for EB2 but based on job description given by my employer to them, S/W Dev Mgr role is deemed as EB-3 role. Even thou I am managing team of well experienced engineers my own case is filed as EB3 awaiting perm approval.

TLDR - Not all EB3 cases after 10 yrs failed to show natural progression

[gc2021]

Hello Guru's,

I have approved H1B(valid till 2023) with my current employer and I have approved EAD/AP through Adjustment of status. If I want to switch from H1 B status to EAD what should my employer do ? Need to update I-9 ? How does USCIS know what is my current visa status ? H1B vs Pending 485?

My wife is working on H4 EAD which is valid for another two years and now her GC EAD also approved . Is she need to inform her employer with GC EAD details or her H4 EAD still fine?

[Moveon]

When I 1st applied for GC, I had BE + MS + 4.5 years of experience. It was Sr Engineer role and Fragomen deemed me as EB2 category back in 2010. Since then I moved 2 jobs, went upto Principal Engieer role and all my employer used Fragomen and filed it in EB-2.

But I switched job again in late 2019 and took Dev Mgr role. New firm is in cloud services and Fragomen is their immi team. Fragomen told me as Individual Contributer engineer role, yes I am eligible for EB2 but based on job description given by my employer to them, S/W Dev Mgr role is deemed as EB-3 role. Even thou I am managing team of well experienced engineers my own case is filed as EB3 awaiting perm approval.

TLDR - Not all EB3 cases after 10 yrs failed to show natural progression

Well I have seen many people move from IC roles to Managerial roles but all stayed in EB-2 and some used that to move from EB-3 to EB-2 . I filed EB-2 back in 2009 as an IC and got my EAD in 2012. I then took up a senior manager role at my previous and current company with Fragoman and BAL as the lawyers. I still have 75% of my duties as that of an architect but do manage a team of ~10 . I did not have to downgrade or file a new petition . Both the law firms said that it was a natural progression and as the Technical role was still maintained it was not a problem.
Did you have to file a new petition when you moved to a managerial position ? Were the job duties completely different .

[inspired_p]

When I 1st applied for GC, I had BE + MS + 4.5 years of experience. It was Sr Engineer role and Fragomen deemed me as EB2 category back in 2010. Since then I moved 2 jobs, went upto Principal Engieer role and all my employer used Fragomen and filed it in EB-2.

But I switched job again in late 2019 and took Dev Mgr role. New firm is in cloud services and Fragomen is their immi team. Fragomen told me as Individual Contributer engineer role, yes I am eligible for EB2 but based on job description given by my employer to them, S/W Dev Mgr role is deemed as EB-3 role. Even thou I am managing team of well experienced engineers my own case is filed as EB3 awaiting perm approval.

TLDR - Not all EB3 cases after 10 yrs failed to show natural progression

Your case combined with mine gives complete clarity that job description and qualification/experience on the PERM determines if EB2/ EB2 "can" be applied. in which eligible category the I-140 is applied is moot and the rules/law no say about it either ways. People just like to play "Us Vs Them".
I repeat again … I know many companies who only file in EB3 as it is their "policy" no matter what the job actually qualified for.

We can always debate if it is helpful for individual or to the entire waiting community to jump from EB2 to EB3 or vice vers. But I find it obnoxious when legality/morality is getting questioned with some notion that is not based on facts.

[vsivarama]

When I 1st applied for GC, I had BE + MS + 4.5 years of experience. It was Sr Engineer role and Fragomen deemed me as EB2 category back in 2010. Since then I moved 2 jobs, went upto Principal Engieer role and all my employer used Fragomen and filed it in EB-2.

But I switched job again in late 2019 and took Dev Mgr role. New firm is in cloud services and Fragomen is their immi team. Fragomen told me as Individual Contributer engineer role, yes I am eligible for EB2 but based on job description given by my employer to them, S/W Dev Mgr role is deemed as EB-3 role. Even thou I am managing team of well experienced engineers my own case is filed as EB3 awaiting perm approval.

TLDR - Not all EB3 cases after 10 yrs failed to show natural progression

Thank You, for so eloquently making the point for me. That's exactly how I should have said it. I would say a lot of folks in this forum would even qualify for EB1C if the 1 year, work (manage people) outside of US qualification was not there. Even the lawyers with their interpretation could bump up or down your eligibility.

[AceMan]

I have already made the case as to how USCIS looks at it. No one is saying they grow downwards (you could make that case only if a different PERM was required). If in fact USCIS ran with your logic, they could kick everyone out of EB3 who have been waiting for a decade as they failed to show natural progression for over a decade. I will not engage further on this since nothing I say will change your opinion on people who downgraded. It does not really matter if someone thinks I am fraudulent, my conscience is clear.



I do not know what point you are trying to make here. It looks like an apples to oranges comparison to me. If the law says you are not allowed to buy beer under the age of 21, then if you are caught not having paid for it you do NOT get the option to pay for it and leave (if you are a minor). USCIS is under NO OBLIGATION to premium process an application if it is against the law (If it's a grey area then it's a different issue). Not sure how much more clear I can be on this. You can try and premium process your 485 or EAD and see what the USCIS has to say about it.



You can read my previous statements, I said we had not seen visa wastage as a result of upgrades in last decade. I did acknowledge there will be delays and confusion. As for your inconvenience, I do apologize for having the temerity to downgrade my case. I should have known better.

The premium process I am talking about is for 140. But again you can wake up a person who is sleeping, you cannot if one is pretending to sleep.

I will agree to the part this discussion has run its course and it is up to the individual to decide if a change in category can help them or not. I respect the fact that you are a fellow immigrant who believes what you did is right, I am another immigrant who has very strong opinions on people who downgrade.

[AceMan]

When I 1st applied for GC, I had BE + MS + 4.5 years of experience. It was Sr Engineer role and Fragomen deemed me as EB2 category back in 2010. Since then I moved 2 jobs, went upto Principal Engieer role and all my employer used Fragomen and filed it in EB-2.

But I switched job again in late 2019 and took Dev Mgr role. New firm is in cloud services and Fragomen is their immi team. Fragomen told me as Individual Contributer engineer role, yes I am eligible for EB2 but based on job description given by my employer to them, S/W Dev Mgr role is deemed as EB-3 role. Even thou I am managing team of well experienced engineers my own case is filed as EB3 awaiting perm approval.

TLDR - Not all EB3 cases after 10 yrs failed to show natural progression

Very good point. What people who are using your post to justify downgrade is missing the fundamental fact that you have changed jobs.

[vedu]

I have already made the case as to how USCIS looks at it. No one is saying they grow downwards (you could make that case only if a different PERM was required). If in fact USCIS ran with your logic, they could kick everyone out of EB3 who have been waiting for a decade as they failed to show natural progression for over a decade. I will not engage further on this since nothing I say will change your opinion on people who downgraded. It does not really matter if someone thinks I am fraudulent, my conscience is clear.

Vsivarama,

I support your viewpoint on this. You did the right thing by downgrading. Securing EAD/AP for you and your family is worth its weight in gold (It's not that heavy anyways! ). One should do anything possible, upgrade/downgrade to get in the AOS status.

If one already has an EAD/AP, then should he/she downgrade? I say "Yes", particularly if your employer is paying and if it means you can get your GC 6-7 months earlier. What do you have to lose? We are nobody to judge morality of it. Let the USCIS worry about that.