An I-140 “downgrade” refers to the process of re-filing an I-140 petition that was previously approved in the EB-2 category in order to instead be considered in the EB-3 category. While this is not a new process, it became more common in October 2020 when green card availability in the EB-3 category was more favorable than the EB-2 category.
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.
Since downgrading has become more common, it has also seen its share of hurdles, the biggest of which is the long processing time. In many cases, a downgrade is not contemplated unless the priority date is actually current in the EB-3 category and an accompanying I-485 application for adjustment of status can be filed concurrently with the downgrade. While concurrent filing should result in improved efficiencies for the government agency responsible for adjudicating the filings, it resulted in a large number of filings that overwhelmed the Texas Service Center. USCIS filing instructions require that all I-140 and I-485 concurrent filings be submitted to the Dallas Lockbox, regardless of the location of the employer sponsor or the employee applicant. These ultimately ended up at the Texas Service Center for processing. Unprepared for the volume of filings that occurred, it took USCIS four months just to issue receipt notices confirming proper filing.
To make matters worse, when an I-140 downgrade petition is filed, it is submitted with a copy, not the original, of the required PERM labor certification because the original was previously submitted in support of the EB-2 I-140 petition. Before USCIS will adjudicate the I-140 petition in the EB-3 category, it will first obtain the original PERM labor certification from the prior I-140 file or from the Department of Labor. For this reason, USCIS will not accept a downgrade I-140 petition using its premium processing service, which allows review of the petition within 15 calendar days with the payment of an additional filing fee of $2,500.
This does not mean the premium processing is completely unavailable for downgraded I-140 petitions. Rather, the downgrade petition cannot request premium processing along with the initial filing. But, once a receipt notice is generated, the downgrade I-140 petition can be “upgraded” to premium processing when the employer files an I-907 request for premium processing along with the required filing fee.
Unfortunately, in the event that the original labor certification has not yet been obtained either from the prior I-140 file or from the Department of Labor, USCIS current policy is to reject the premium processing upgrade. This does not have any negative consequence for the downgrade petition itself, but it does mean that the premium processing filing fee will be returned to the employer and the petition will continue through the regular processing queue. Currently, regular processing at the Texas Service Center takes 9.5 to 14 months. A large number of I-140 downgrade petitions filed in October 2020 therefore remain pending still one year later.
Reddy & Neumann has encountered a number of premium processing upgrade rejections from the Texas Service Center over the last several months. The good news is that a rejection does not preclude the employer from simply re-submitting the upgrade and trying again. In many cases, the upgrade is eventually accepted and the I-140 downgrade petition processed in the required 15 day window.
By: Emily Neumann
Emily Neumann is Managing Partner at Reddy & Neumann, P.C. 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.