EB-2 to EB-3 India Downgrade Process

The green card waiting times for family and employment-based categories have always been notorious for being long, with some cases taking decades to be processed. However, recent changes have stirred up things in the immigration world. With no movement in the family-based categories came an unprecedented opportunity for those applying for employment-based immigrant visas. On this page, you will learn all about EB-2 to EB-3 downgrade, how it affects immigrants from India, processing steps and costs. 

Typically, the higher the preference level, the shorter the waiting time. However, each country is different, and heavily populated countries such as China and, in particular, India have always found themselves waiting the longest for their green cards. For this reason, it’s not necessarily uncommon for an EB-3 applicant to port their green card upward to an EB-2 in order to take advantage of the shorter wait time.

This recent change, coming right at the start of the new fiscal year and hard on the heels of sweeping immigration legislation and COVID-19, has created a unique situation in which it would take less time for an Indian applicant to receive an EB-3 than it would take to receive an EB-2. For this reason, many people want to know whether or not they can get an EB-2 to EB-3 downgrade.

When is EB-2 to EB-3 Downgrade Available?

Applicants can downgrade from EB-2 to EB-3 if they have an approved I-140 for EB-2 with their current employer while they also have a priority date that is current for EB-3. You can reuse the PERM certificate that you have received for EB-2 for your brand new I-140 application for EB-3. You will not be required to submit a new PERM application.

Processing Times for Downgrading

While the entire downgrading process will save you time you should also consider the new processing timelines for your switch to EB-3.

For your new I-140 to process, it will take approximately anywhere between 6 to 10 months. Whilst the USCIS does not start processing your new I-140 until they make sure that you have a valid PERM, the entire downgrading process will be much faster than waiting for your EB-2.

Premium processing is also available for EB-2 to EB-3 downgrade. However, it is entirely dependent on USCIS discretion. Essentially, if the USCIS can easily find your PERM certificate, then chances are that premium processing will be initiated. Usually, if your downgrading application is assessed at the same USCIS Service Center as your original PERM application, then premium processing will go ahead.

EB-2 vs EB-3 India

To be eligible for the EB-2 visa, you must have at least a Bachelor’s degree as well as a minimum of 5 years of work experience in your field. Additionally, you can be eligible if you show exceptional, above-average abilities and achievements in arts or business.

To qualify for EB-3 visa, you will generally need only a job offer from a U.S. company. There are no requirements to have specialized and well-recognized skills in any field of work. However, for skilled professionals, you must have at least 2 years of work experience and to possess at least Bachelor’s degree from an accredited U.S. educational institution or a foreign equivalent.

Considering the large number of qualified and educated professionals in India, either of the paths EB-2 or EB-3 would be suitable for them. Considering that the wait times differ dramatically between the two, it could be worth looking into EB-2 to EB-3 downgrade to receive your visa faster.

EB-2 to EB-3 India Downgrade Step-by-Step Process

Assuming you still work for the same employer that sponsored your EB-2 petition previously, here’s the detailed step-by-step process outlining all the required forms, timeline and possible outcomes:

1. Prepare and submit an I-140 package requesting EB3 classification using the
   previously certified PERM that was used for the EB2. In many cases, PERM
   Labor Certifications (certified ETA 9089s), which have been used in support of
   an EB-2 petition, can be used to support an EB-3 petition by the same employer
   and for the same position.  USCIS permits the usage of a prior PERM Labor
   Certification if it was used to support a previously filed I-140 while the ETA 9089
   was still valid. A new PERM is not needed as it is with the same employer.
2. The I-140 petition has to be submitted with a copy of the previously certified ETA
   9089 and proof that the Applicant/Beneficiary meets the minimum requirements
   of the position as listed in the certified ETA 9089. Additionally, the employer has
   to submit evidence to prove their ability to pay the proffered wage from the
   priority date. This is done by providing copies of the employer’s last 2-3 Federal Tax
   returns, financial records as well as the Beneficiary’s W2s and pay stubs.
3. If the filing date for EB3 is current, the I-485/I-765 and I-131 applications can be
   filed concurrently with the I-140 requesting the EB3 classification since once its
   approved, it will be assigned the original priority date of the EB2 I-140. This will
   enable the applicant and his/her qualifying dependents to receive EADs and
   Advance Parole documents while the I-485 is pending. Concurrent filing is
   recommended as the dates on the visa bulletin can retrogress at any time.
4. A premium-processing request may be submitted to USCIS once a receipt notice
   for the I-140 has been received, as USCIS needs to retrieve a copy of the original
   certified ETA 9089 from the previously approved EB2 I-140 file.
5. If USCIS accepts the premium upgrade, it will adjudicate the I-140 within 15
   business days of when it starts the premium processing clock. If it does not accept
   the request for premium then it will take 4-5 months to adjudicate the I-140
   downgrade.

EB-2 to EB-3 Downgrade Receipt

The USCIS will let you know about the receipt of your EB-2 to EB-3 downgrade application by keeping you updated about the submission of your new I-140. Essentially, you can track the progress of your Form I-140 to see how well the processing of your downgrade is going. You can check your case status at any time.

A Background on Priority Dates

If you’re wondering why a lower priority level would have a shorter waiting period than a higher one, let’s break down how priority dates work. 

Each year, the Department of State (DOS) caps the number of employment- and family-based green cards that are issued to any particular country (or chargeability area). If a country has a significant number of its citizens apply for green cards each year, then it will have its own chargeability area. All other countries are grouped into the chargeability area of “other countries.”

When there are more applicants from a specific country for a particular green card category than there are visas available that year, then a backlog will begin to build up, and new applicants will have to wait their turn before receiving their visa numbers and being able to file their I-485 forms or go through consular processing.

The DOS handles this backlog by having your “turn” in line be designated by your priority date, which is the date that the USCIS receives your petition. Each month the DOS publishes a visa bulletin with a series of “final action dates,” one for each chargeability area and for each green card category. 

Applicants from chargeability areas with a backlog need to watch these published final action dates. Once the final action date in their category and chargeability area matches or passes their priority date, a visa number will become available and the applicant can move onto the final steps of the green card process. 

At that point, your priority date is considered “current.” If your chargeability area does not have a backlog, your priority date will automatically be considered current and you can move onto the next step as soon as your petition is approved.

Why Some Countries Have Longer Wait Times Than Others

However, this means that the amount of time you have to wait for your priority date to be current is dependent on how many people from your country apply each year. Therefore, applicants from heavily populated countries that regularly exceed their annual cap will need to wait longer than other countries as the backlog continues to build. Each time the limit is exceeded, the line gets longer and the final action dates are pushed backward. This is why Indian and Chinese applicants often find themselves waiting years for their priority dates to be current.

How an EB-2 to an EB-3 Downgrade of your Green Card Can Help

Knowing this, it should be obvious that the more difficult it is to qualify for a particular green card, the fewer applicants there will be—which should result in a shorter waiting time since the limit is being exceeded less often.

In the past, this has held true. The EB-3 is a relatively easy green card to qualify for in comparison to the EB-2. As an EB-3 applicant, all you need is a job offer with a U.S. employer that isn’t seasonal or temporary. However, you will need an advanced degree or “exceptional ability” in your field in order to qualify for an EB-2. So the final action dates for the EB-2 have historically been better than those for the EB-3.

In fact, the wait time for the EB-3 was so long, that some applicants could obtain the qualifications for an EB-2 (e.g. a master’s degree and a new job requiring that degree) and port their petition from an EB-3 to an EB-2. This would allow them to retain their original priority date (rather than starting a new one) and speed up their processing.

The real advantage comes in the “dates for filing,” which are listed after the final action dates on the visa bulletin. Green card applicants that have a priority date that occurs before the date for filing for their chargeability area can file their I-485 forms to adjust their status earlier than their final action dates. Therefore, the date you see listed in the “Dates for Filing” section is the priority date of the first applicant that cannot file their I-485 yet.

This is significant because of the difference between the EB-2 and EB-3 dates for filing for India. The EB-2 category is stuck on May 15, 2011, while the EB-3 has jumped to January 1, 2015. This means that Indian EB-3 applicants will get their green cards three and a half years before their EB-2 counterparts. For this reason, those applying for an EB-2 may want to consider an EB-2 to EB-3 downgrade to save themselves several years of waiting.

Complexities of EB-2 to EB-3 Downgrade

Unfortunately, changing from one preference level to the next isn’t as simple as checking a different box. You may need to start a new case over from scratch starting with the PERM Labor Certification process and continuing on to filing a new I-140 petition. However, you may be able to use the previous PERM as long as the job requirements, location, and wages have not changed. The real difference is that the priority date from your original petition will be retained for your new petition. 

Therefore, because this is a completely new case, you will need to assemble the appropriate supporting documents showing that you qualify for the EB-3 just as you did the EB-2. Fortunately, downgrading is much easier to do than upgrading, as those that qualify for an EB-2 more than likely qualify for an EB-2, since all you need is a non-seasonal job with a U.S. employer. Unless you were applying for a National Interest Waiver with your EB-2, you should have little difficulty in proving that you qualify for an EB-3.

The first step would be to reach out to your employer and have them file another I-140 on your behalf. If a new PERM is needed, it will take several months at least. Be sure to have the employer designate that you want the original priority date to be retained, otherwise your priority date will start over when the USCIS receives your new I-140. If you’ve already waited several years for your EB-2, this can be devastating.

At the end of the day, the type of green card does not change the benefits. All green cards, regardless of their requirements, result in legal permanent residence for the holder. Though some are conditional and are initially only valid for two years, the rest are valid for ten years at a time and only need to be renewed, meaning that you do not need to re-qualify for them. Therefore, downgrading from an EB-2 to and EB-3 does not deprive you of any green card benefits you would have otherwise received.