Overview of I-140 Downgrade from EB2 to EB3 Preference Category

Historically, the employment-based, second preference (EB2) category for India has enjoyed a more favorable cutoff date in the monthly visa bulletin than its employment-based, third preference (EB3) counterpart. More recently, the cutoff date for EB3 India has surged forward, and has consistently remained ahead of EB2 India since the August 2020 Visa Bulletin. This has sparked great interest among Indians in EB2-to-EB3 “downgrade” filings. This MurthyDotCom article addresses common questions that Murthy Law Firm attorneys regularly receive related to EB3 downgrade filings.

What is a downgrade case?

Simply put, a downgrade case is where the employer files an I-140 petition in the EB3 category based on a PERM labor certification (PERM LC) approved for a position that qualifies under the EB2 category (i.e., a position that requires at least a master’s degree or a bachelor’s degree plus five years of progressive work experience). The EB2 priority date can be ported for use with the EB3 case so that a downgrade I-140 petition may be a good option in situations where the EB3 category has a more favorable cutoff date.

What is the USCIS policy on downgrade cases?

The U.S. Citizenship and Immigration Services (USCIS) does not appear to have a formal policy on downgrade filings. However, there is no law or regulation that prohibits such filings. Further, based on how these cases have been adjudicated historically, the USCIS seems to treat an I-140 downgrade filing essentially as it would any other I-140 petition.

Can I file an I-485 application concurrently with my I-140 downgrade petition?

If the priority date is current under the EB3 category and the individual is in the U.S. in valid status, it typically is possible to file the I-485 adjustment of status application concurrently with the downgrade case.

I filed an I-485 application based on my EB2 I-140. Can I still file a downgrade case?

Generally, the fact that the I-485 is pending based on an I-140 approved in the EB2 category would not prevent the employer from filing an I-140 downgrade petition on behalf of the same employee. The employer could request the USCIS to interfile the I-140 petition with the pending I-485 application.

Do I need a new PERM LC to downgrade from EB2 to EB3 with the same employer?

Generally, a new PERM LC is not normally needed in a downgrade situation.

Can I file a downgrade case using the PERM LC filed by my previous employer?

No, with very limited exceptions, only the employer that filed the PERM LC may use it for purposes of filing an I-140 petition.

Last year, I filed an I-485 application based on my EB2 I-140.

My employer then filed an I-140 downgrade case for me, which was recently approved. I now wish to move to a new employer. Do I need to wait another 180 days to port to a new job using AC21?

Generally, if the I-485 has been pending for at least 180 days, one normally can port to a same-or-similar position. The I-140 downgrade case in and of itself would not normally impact eligibility for AC21 portability.

Are there risks in filing an I-140 downgrade case?

The greatest risk tends to be that the employer may run into challenges in satisfying the ability to pay requirement. As with any I-140 filed for an EB3 position, the employer must demonstrate it has the ability to pay the salary listed in the PERM LC from the date it was certified. Under normal circumstances, where the I-140 petition is filed shortly after the PERM LC is approved, the applicable ability to pay period only covers a year or two. But, with a downgrade case, the EB3 I-140 may be filed years after the PERM LC was approved. If the employer had even one bad year financially during all those years, it could result in denial of the I-140. Worse still, this could also lead to the USCIS issuing a notice of intent to revoke (NOID) the previously approved EB2 I-140 petition.

As if that is not problematic enough, the USCIS may demand that the employer demonstrate ability to pay all its workers with approved I-140 petitions for the entire period in question. If the employer fails to demonstrate its ability to pay, all of the corresponding I-140 petitions could be revoked.

This is not to say that employers should avoid filing an I-140 downgrade petition. These cases are routinely filed without incident. Prior to filing an I-140 downgrade petition, however, the employer should consult with an experienced immigration attorney to review the situation and evaluate risks related to ability to pay, along with other potential issues that could arise.

Can my employer request premium process of the I-140 petition in a downgrade case?

If the PERM LC is at the service center where the I-140 is being filed, it appears the USCIS will honor the premium processing request. However, there have been reports of cases being rejected when a premium processing request was included. As a precaution, it may be best to file the I-140 petition under regular processing. Once the receipt is issued, one could upgrade the case for premium processing. At that point, even if the premium processing request is rejected, it would not impact the pending I-140 petition.

If I downgrade to EB3 now, can I later upgrade back to EB2?

There is no rule that prohibits this. At the Murthy Law Firm, we have done this successfully in the past. As described above, depending upon the circumstances, there may be risks in doing so, as the USCIS has another opportunity to review the entire package – the employer’s ability to pay the prevailing wage, and employee’s qualifications for the job and any other factors.

Conclusion

An I-140 downgrade petition can help save considerable time that a person must wait for a green card. However, as with any filing, it can carry risks. Given the various complexities in I-140 downgrade cases, it is advisable to consult with an experienced immigration attorney. If you do not have an attorney, please contact the Murthy Law Firm to consult with an experienced member of our legal team.

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