I filed an EB3 downgrade case, and my I-485 is still pending. I read online that, if my EB2 case becomes current and my I-140 was filed as a new petition rather than as an amendment, the USCIS will automatically adjudicate my case as EB2. Is that correct?


We had a similar question several weeks ago, and our response may not have been sufficiently nuanced. Our general recommendation is that, if an EB3 downgrade case has been filed and later the individual wishes to return to EB2, some action should be taken. For instance, one option may be to interfile the previously approved I-140 to upgrade back to EB2.

If no action is taken, however, there is the possibility that the USCIS officer will notice this and upgrade the case to EB2. We have seen this happen before, but it is not automatic. In many cases, the pending I-485 will remain pending until either EB3 is current again or some action is taken by the petitioner or applicant. (11.Nov.2021)

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