Employment-Based Green Cards: Downgrading, Premium Processing, Aging Out, and More

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Join Chugh, LLP Partner and Attorney Navdeep Meamber and Immigration Consultant Jagan Tamirisa for an informative conversation on the green card downgrade process from EB-2 to EB-3: whether to get premium processing, how it impacts your child when they turn 21, and what downgrading entails. They also discuss whether you can travel while your adjustment of status is pending, whether you should reschedule your biometrics appointment, and more.

This conversation was recorded live on August 19, 2021.

Downgrading from an Eb-2 to an EB-3 Green Card

Each year, the United States Department of State limits the number of employment- and family-based green cards that are available to nationals of each country. Countries with a high number of applicants in a year will have their own green card “chargeability” area. This has led to backlogs for citizens of countries that submit many applications, including China and India.

Individuals must wait their turn for their green card based on their priority date, which is the date that United States Citizenship and Immigration Services (USCIS) received their Form I-140, Immigrant Petition for Alien Workers green card petition.

Each month, USCIS publishes a Visa Bulletin with Final Action Dates for each preference category and country. Once an individual’s priority date is before the listed Final Action Date for their country and preference category, their employer can file Form I-485, Application to Register Permanent Residence or Adjust Status to adjust status to lawful permanent resident.

Generally, the EB-2 green card has shorter wait times than the EB-3 because it is harder to qualify for. The EB-2 category requires an advanced degree or “exceptional ability” in one’s field, while individuals only need a bachelor’s degree to qualify for EB-3.

When a Downgrade Could Help

In October 2020, the wait time for an EB-3 green card for individuals from India was shorter than the EB-2 green card for Indians, even though the EB-3 category is easier to qualify for.

Although this was an unusual occurrence, USCIS currently has extra green cards available. Another downgrade opportunity could happen again. In that case, it may make sense for individuals with pending EB-2 applications to downgrade to EB-3 so that they can get their green cards faster.

How Downgrading Works

Employers can initiate a downgrade by preparing a Form I-140 for the new EB-3 designation. Employers can use the previously certified PERM Labor Certification (ETA Form 9089) from the EB-3 petition again for the same position under the EB-2 category if certain conditions are met. Specifically, the PERM Labor Certification filed with the previous application must still be valid and filed by the same employer.

Employers must check the Visa Bulletin from the US State Department to view the Final Action Dates and Dates for Filing charts. They must consider which table USCIS is using each month. If USCIS uses the Dates for Filing chart, the agency will accept I-485 applications for individuals whose priority dates are current.

However, USCIS will not allow these cases to be approved or for these individuals to adjust status to a permanent resident. That only happens when their date is current under Final Action Dates chart. If an individual’s date is current under the Final Action Dates chart, employers can concurrently file Form I-140 for the EB-3 visa with Form I-485.

Outlook for Downgrades

Downgrading can be advantageous for employees that are from countries with a backlog. It also does not negatively impact their application. They can apply for advance parole (AP) for international travel and an employment authorization document (EAD) after submitting the new Form I-140.

Employers may downgrade only within the month that their employee’s priority date is current. Act quickly. Consult with your trusted Chugh, LLP immigration professional to see what your options are.

Premium Processing on Downgrades

Employers should not use premium processing on Form I-140 for an EB-2 to EB-3 downgrade. Instead, it may be better to file the new I-140 application with regular processing. After you get the receipt notice, request premium processing. If the premium processing request is denied, simply wait 30 days, and try again.

Rescheduling Biometrics Appointments

Biometrics appointments are required for green card applicants. During this appointment, USCIS will collect your fingerprints, take your photo, and gather your electronic signature.

It is not recommended to reschedule your biometrics appointment, as it can delay the processing of your EAD and AP.

If you have a sincere emergency, you may be able to reschedule this appointment.

Medical Exams

If you did not submit your medical information using Form I-693 at the time you submitted your I-485, either due to the COVID-19 pandemic or another reason, USCIS will issue a request for evidence (RFE). Be sure to submit your medical information at the time of receiving the RFE.

USCIS has extended the validity of medical Form I-693.

Contact Us

For help understanding the green card downgrade process, please contact the immigration professional with whom you work at Chugh, LLP.

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