Every month, the Department of State’s Visa Bulletin determines immigrant visa (green card) availability for applicants waiting for employment-based adjustment of status. When a green card becomes available to an employee who has been sponsored for an employment-based green card depends on the employee’s country of birth, preference category, and priority date (date of filing the first step in the process). The two most common preference categories used for employment-based green cards are EB-2 and EB-3.

EB-2, or employment-based second preference, is available for job offers to “Members of the Professions Holding Advanced Degrees.” In other words, jobs requiring at least a Master’s degree or a combination of a Bachelor’s degree with 5 years of progressively responsible experience.

EB-3, or employment-based third preference, is available for job offers to “Skilled Workers” or “Professionals.” These refer to positions requiring at least a Bachelor’s degree or 2 years of education, training, or experience.

Twenty years ago, the majority of employment-based green card applicants were sponsored in the EB-3 category. This lead to a shorter wait for those who could qualify for the EB-2 category. As high-skilled workers gained additional education and skills over the years, since at least 2009, more workers were being sponsored in the EB-2 category than EB-3. This has created a unique situation in which EB-3 now has a shorter wait than EB-2, particularly for applicants born in India or China. Many EB-2 applicants became eligible to “downgrade” to the EB-3 category in order to file their I-485 application to adjust status sooner.  

Generally speaking, an employee beneficiary of an approved I-140 in the EB-2 category should be able to downgrade the I-140 to the EB-3 category because meeting the requirements for approval under EB-2 will almost always meet the requirements for approval of EB-3 filings, even when using a Labor Certification originally designed for EB-2 cases. A question arose as to whether EB-2 I-140 petitions approved under the Schedule A designation for Physical Therapists would also qualify to downgrade to EB-3.

Schedule A I-140 petitions follow a different process for adjudication compared to PERM labor certification-based I-140 petitions. For certain occupations, the Department of Labor has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available. These occupations are referred to as Schedule A occupations, and the process to satisfy the permanent labor certification requirement is referred to as “blanket” labor certification. The Department of Labor has predetermined that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of noncitizens in those occupations. Physical Therapists and Professional Nurses are Schedule A occupations.

Because of the occupational shortage of these U.S. workers, the Department of Labor has “pre-certified” Schedule A occupations. This means that an employer who wishes to hire a person for a Schedule A occupation is not required to conduct a test of the labor market and apply for a permanent labor certification with the Department of Labor. Rather, this employer must apply for Schedule A designation by submitting an application for permanent labor certification to USCIS in conjunction with the petition. These petitions must be filed with a valid prevailing wage determination and documentation that a Notice of Filing was posted no more than 180 days prior to filing.

In a normal downgrade petition, the same labor certification obtained from the Department of Labor is re-submitted to USCIS with a new I-140 petition. For Schedule A downgrades, there is no guidance confirming whether the labor certification submitted previously to USCIS can be re-submitted without the need to obtain a new prevailing wage or post a new Notice of Filing.

The lack of guidance has led to mixed results for Schedule A employers attempting to downgrade from EB-2 to EB-3 using the same labor certification without obtaining a new prevailing wage or posting a new Notice of Filing. Some petitions have been approved, while others have been denied. The reason for denial is the lack of valid prevailing wage and notice.

USCIS has no legal basis to treat Schedule A labor certifications differently from those that underwent the PERM process as both lead to a certification that there are not sufficient U.S. workers available and wages and working conditions of U.S. workers would not be adversely affected.

All certifications referred to in Part 656 of the regulations, whether they are individual applications through PERM or Schedule A applications, are by regulatory definition a “labor certification.” Both should be treated as valid when a petitioner requests a different immigrant visa classification than that classification requested in a previously filed petition.

Employers and sponsored Schedule A workers should be aware of the inconsistent application of downgrade procedures compared to other workers with approved EB-2 I-140 petitions. Those hoping to take advantage of the expected movement of cut-off dates in the October 2021 Visa Bulletin may wish to consider filing a downgrade now to ensure that the EB-3 I-140 petition can be approved before filing an adjustment of status this fall.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.