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Is EB-2 to EB-3 Downgrade a Good Option for Me?

As you may have already noticed, the August EB2 Mainland China cut-off date for is 1/15/2016 and EB3 Mainland China cut-off date is 2/15/2017. If you applied for EB-2 and your priority date is before 2/15/2017, downgrading your EB-2 to EB-3 may be worth considering.

What’s the Benefit of Downgrading My EB-2 to EB-3?


The main reason for the downgrade is to enable you to file I-485 adjustment of status application. With I-485 filed, you and your family members will get the Employment Authorization Document (EAD) and Advance Parole so that you can work in the US and travel internationally. In addition, you may be able to port your I-485 a new employer after 180 days.


How Does EB-2 to EB-3 Downgrade Work?


Almost all the PERM Labor Certifications which supported your EB-2 petition can support an EB-3 petition by the same employer. This means, the employer only needs to file a new I-140 without going through the PERM process. Therefore, you need to talk with your employer about this option and you can only proceed with your employer’s approval.


How Long Does Downgrade Take?


I-140 usually takes about 4-6 months for USCIS to process, and premium processing is available now. However, premium processing is not guaranteed in downgrade cases because USCIS needs to internally confirm that the case is eligible for premium processing. In the event that premium processing is not available or not chosen, the regular I-140 processing time will apply.


Even your case is under regular processing, if you file your I-485 application concurrently, you and your family members will enjoy the benefit of Employment Authorization Document (EAD) and Advance Parole while the I-140 and I-485 are pending.


Is EB-2 to EB-3 Downgrade a Good Option for Me?


If qualified, we would advise you to file an EB-2 to EB-3 I-140 downgrade when your priority date is current under EB-3 category, which means you and your family members can file I-485 concurrently with the EB-2 to EB-3 I-140 downgrade petition, and the EB2 cut-off date is still far behind, which currently is over 1 year behind.

The EB-2 to EB-3 downgrade petition normally does not automatically cancel your existing EB-2 I-140 petition. If the EB-3 I-140 petition is approved, USCIS will consider the case to be based on EB-3. If the EB-3 downgrade is not successful, the EB-2 petition is unaffected.


We will be happy to analyze your case if you cannot make up your mind whether downgrade is a good option for you.

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