How to Beat the Visa Bulletin Backlog? EB-3 Downgrade Petitions

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Every month the Department of State releases the Visa Bulletin, which tells visa applicants how long they must wait before they can apply for their green cards to immigrate to the United States.

Unfortunately, the Dates for Filing chart of the Visa Bulletin has not seen any forward movement in recent months, and the Final Action Dates have moved very slowly for most employment-based preference categories.

What does this mean for employment-based categories experiencing long delays such as EB-2? Keep on watching to find out more.

Overview

For employment-based visa applicants stuck in the lengthy backlogs, there is an effective way to combat the visa backlog by downgrading to the employment-based third preference category (also known as EB-3), which is currently moving faster than the other employment-based preference categories on the Visa Bulletin.

What is an EB-3 downgrade?

The EB-3 downgrade refers to the process of strategically moving from another employment-based category (one that is moving slowly), to the employment-based third preference category (EB-3) to take advantage of the faster movement of the category on the Visa Bulletin. This is particularly helpful for nationals of countries facing very high demand for immigrant visas such as India and China.

As an example, in the March Visa Bulletin the EB-2 Final Action Date for India is stuck on March 1, 2012, and the EB-2 Worldwide Final Action Date is stuck on November 22, 2022. This means that there is very high demand for these visa categories, causing a cutoff date to be applied by the Department of State to limit number use only for applicants whose priority dates are earlier than the final action date.

To beat these backlogs, such applicants may wish to “downgrade” from the EB-2 category to the EB-3 category.

A downgrade occurs when the applicant files a second, I-140 petition with USCIS to qualify for the EB-3 category (in addition to the original I-140 associated with the EB-2 category).

EB-2 applicants can downgrade to EB-3 once they have the approved I-140 for EB-2 with their current employer, and a priority date that is current for EB-3. When downgrading, applicants can reuse their PERM certificate for EB-2 for the new I-140 application filed for EB-3, without having to submit a new PERM application.

Thus, downgrading could be a very beneficial and time-saving process for those applicants who are stuck in a slow-moving employment-based preference category. In such a case, a downgrade could lead you to receive your green card faster.

What is the downgrade process like?

Essentially, the EB-3 downgrade process consists of five main steps, which includes filing a new (second) I-140 petition with USCIS for the EB-3 category, which will run parallel to your original EB-2 petition, so that you can take advantage of the EB-3 priority date to speed up the processing of your case.

Step 1: First, confirm your eligibility for the EB-3 downgrade

For example, if you filed your original EB-2 petition as a National Interest Waiver, you will not qualify for an EB-3 downgrade, because the National Interest Waiver application process deviates from the EB-3 and does not require a PERM labor certification.

Step 2: Do not cancel or revoke your original petition

You should not cancel or revoke the original I-140 petition you filed with USCIS. You must allow your original I-140 application to be processed and approved so that you can reuse the PERM certificate for the EB-3 downgrade process.

Step 3: File your new I-140 petition in parallel to your original petition

You must file a new (second) I-140 application for EB-3, and the application must be filed in parallel to your original petition with USCIS. You will not cancel or revoke the original petition, and instead both applications will run parallel to one another.

Step 4: You must state and clarify in your new I-140 petition that this petition is filed subsequent to the original, and not in place of it – you still want to receive your original visa

When you file your new (second) I-140 application for EB-3, you must clearly state on the cover letter that you are filing a subsequent I-140 petition, and state that the filing will not replace the original I-140 EB-2 petition pending with USCIS.

Step 5: Provide a copy of your previously approved I-140 and PERM labor certification

Lastly, when requesting an EB-3 downgrade, you must provide a copy of your previously approved Form I-140, and a copy of your PERM labor certification.

For those who qualify, the downgrade process can save you valuable time and help you get your green card processed much faster than waiting in the visa backlogs.

Contact Us. If you would like to schedule a consultation to determine your eligibility for an EB-3 downgrade, please text 619-569-1768 or call 619-819-9204.

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