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, particular for applicants born in India or China. Many EB-2 applicants are eligible to “downgrade” to the EB-3 category in order to file their I-485 application to adjust status sooner.   

A downgrade can be accomplished either by refiling a previously approved EB-2 I-140 in the EB-3 category or by filing an EB-2 intended Labor Certification in the EB-3 category.

Generally speaking, anyone with an approved EB-2 should be able to downgrade their I-140 to EB-3 because the requirements for approval under EB-2 will almost always be met for EB-3 filings, even if using a Labor Certification originally designed for EB-2 cases. Further, anyone with a Labor Certification intended for an EB-2 filing can file under EB-3, either as a professional (minimum Bachelor’s degree) or skilled worker (minimum two years of relevant education, training, or experience), so long as the original I-140 is filed during the six-month validity period of that Labor Certification. Therefore, whether you have filed and have had approved an EB-2 petition, if you have filed and have an EB-2 petition pending, or you have an approved Labor Certification yet to file your I-140, you can “downgrade” thereby bringing you closer to a current priority date.

I have an I-140 approved for EB-2. Can I downgrade? How? My Labor Certification has been expired for quite some time.

Yes, an individual with an approved EB-2 petition can “downgrade” to EB-3 using the same Labor Certification that was used for the originally filed EB-2 case. Under the Neufeld Memo released in 2007, subsequent or amended I-140 petitions can be filed at any time so long as the original approved Labor Certification was filed in support of a previously filed I-140 petition during the six-month validity period of that Labor Certification. So, as long as your original I-140 was properly filed, i.e. during the six-month validity period of the Labor Certification, you can file to downgrade to EB-3.

I have a Labor Certification pending or approved that was intended for an EB-2 case. Can I used that to file an EB-3 case? How?

Yes. Generally speaking, a Labor Certification intended for an EB-2 case can be used to file an EB-3 case. The fact that the Labor Certification was drafted or intended for an EB-2 case will not prejudice a filing in EB-3. The Government sets the minimum requirements, or “floor”, for EB-2, EB-3, etc. qualification. Conversely, the Labor Certification can be used to “raise the floor” for approval in any category. Therefore, using an EB-2 intended Labor Certification in an EB-3 petition only raises the minimum “floor” for that respective EB-3 category and doing so provides no detriment to the employer or prospective employee.

I have an approved EB-2 I-140. My friend has an approved EB-2 Labor Certification. Would we be able to downgrade for EB-3? How do we do that?

Absolutely. For those with an already approved EB-2 case, USCIS will require a subsequent I-140 be filed. You would not need to obtain a new Labor Certification. Instead, you would file this new EB-3 I-140 petition with a copy of your old, previously utilized EB-2 Labor Certification. USCIS will then process your I-140 petition as it did the original. Once the EB-3 case is approved, the individual now has I-140 approvals in EB-2 and EB-3 providing some tactical advantage as priority dates continue to move.

For those with a pending or recently approved Labor Certification, to file in EB-3, you simply choose to file the I-140 petition for EB-3 outright, rather than filing in EB-2 outright as would be typical. The adjudicative process with USCIS will be the same as if you had filed for EB-2; they take no issue with a downgrade. It’s simply a matter of meeting the bare minimum requirements.  Of course, once the EB-3 is approved, an individual can choose to file another I-140 in hopes of obtaining an EB-2 priority date as well, providing additional tactical advantage as priority dates continue to move. It is also possible to file two I-140 petitions at the same time using the same labor certification, one in EB-2 and one in EB-3.

Is Premium Processing available?

It depends. For a case to be accepted for Premium Processing there is a requirement that the case be filed with an original Labor Certification. Therefore, filing in Premium Processing will be limited to those filing with an original Labor Certification filed within the six-month validity period of that Labor Certification, such as the individual filing in EB-3 category with a recently approved and valid Labor Certification. However, those filing with a copy of an expired labor certification do have the option to upgrade to Premium Processing after filing in regular processing. USCIS may reject the premium processing if the service has not yet been able to retrieve the original labor certification from the previous I-140 file. This has no negative impact on the downgrade petition itself, and the premium processing can be submitted again.

When should I downgrade?

Based on Department of State information, we anticipate that Visa Bulletin cutoff dates may advance significantly in November 2024 for EB-2 and EB-3 India. If you anticipate that your EB-2 priority date may become current in EB-3 in October or November 2025, now is the perfect time to file the downgrade to avoid the rush of filings in October.

If you are considering filing your I-485 for adjustment of status and are looking for a detailed conversation on the final steps in the process, I invite you to schedule a consultation here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.