Downgrading your I-140: When one step back can be two steps forward

          Due to significant backlogging of employment-based visa priority dates, for certain individuals it may be of benefit to choose a lower-tiered employment-based visa category to expedite an individual’s ability to file for adjustment of status to a Lawful Permanent Resident (LPR). For instance, Chinese nationals are now seeing longer wait times for those individuals with approvals under the typically sought after EB-2 visa classification compared to those individuals with approvals under the often avoided EB-3 visa classification. Under current immigration trends, for Indian nationals it is anticipated that the wait times for EB-3 visa classification will soon become more current than EB-2 visa classification, thereby enabling anyone with an EB-3 I-140 approval to file for Lawful Permanent Residence (LPR) status while those waiting upon the maturity of their EB-2 visa classification continue standing in line. Therefore, it may be of immeasurable benefit to those individuals with EB-2 approvals to “downgrade” their I-140 to EB-3 either by refiling their previously approved I-140 in the EB-3 category or by filing their EB-2 intended Labor Certification in an 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-2, either as a professional (minimum Bachelor’s degree) or skilled worker (minimum two years of relevant 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 and is unlikely to question the previously approved EB-2 petition. 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.

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 copy of the Labor Certification. Therefore, filing in Premium Processing will be limited to those filing with an original copy of the 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, there is anecdotal success in upgrading cases to premium processing after USCIS has received the “downgrade” petition, i.e. the subsequent EB-3 case filed after approval of the original EB-2 filing.

For more information on whether an I-140 downgrade is beneficial in your situation, please speak to one of our qualified attorneys at Reddy & Neumann, P.C.

BY: Ryan Wilck 

Ryan is an attorney at Reddy & Neumann PC. Ryan began with the firm in 2012 as a law clerk and has continued with the firm as an attorney from 2014. His main practice covers immigrant visa petitions with skills and experience in various non-immigrant petitions as well as criminal issues.