How to Have your Cake and EB-2, the Mechanics of "Downgrading" your I-140 Approval.

The purpose of this article is to discuss the technical/mechanical considerations associated with downgrading an EB-2 I-140 approval to become an EB-3 I-140 approval with the same priority date.

• Why would you do that? – The Importance of USCIS “demand data”

The October 2018 visa bulletin and corresponding USCIS I-485 adjustment of status application filing charts are the first time in history that EB-3 India has a better cut-off date than EB-2 India. Specifically, the cut-off date for EB-3 India is Oct 1, 2009, whereas the cut-off date for EB-2 India is May 22, 2009. This phenomena of EB-3 being ‘better’ than EB-2 has been occurring for P.R. China, on and off, in the past few years but it is now happening with India. The reason this phenomena occurs is that the EB-3 ‘pipeline’ of pending I-485 applications has gone down over time. 

One way to think of the visa bulletin and the related supply/demand forces is to visualize a garden hose. At one end of the garden hose is the spigot (connected to the house), and at the other end is the nozzle which sprays out the approvals. (OK – it is not a perfect analogy). But in the analogy, what Charles Oppenheim is doing, in issuing the visa bulletin each month and the related cut-off dates; he is designating how much to open the spigot for a given nationality and given classification. If the ‘garden hose’ (or ‘pipeline’ as mentioned in the above paragraph) is pretty empty, then he opens the spigot a lot to fill up the pipeline. He needs the pipeline full so he can more precisely regulate the nozzle (the other end of the garden hose). 

In the public we do not have great visibility of how many cases are in the ‘pipeline’ but periodically USCIS will publish what it calls “Demand Data” – that is, information on pending employment-based I-485 applications. The Demand Data website is here: https://www.uscis.gov/greencard/pending-employment-based-i-485-inventory. If you study the Demand Data closely, you can see which pipelines are full and which are empty (or nearing empty). Right now, EB-3 India is nearing empty so Oppenheim has opened the spigot to get more demand. Some have observed that the pipeline is so low that EB-3 India could shoot ahead of EB-2 India in the next several months.

• Issue #1: This option is only available for PERM-based I-140s, not NIW. And it does not require a second PERM/test of the labor market.

So, let’s say you are an EB-2 Indian with a priority date from June 2010 or sometime in 2011, and you have been waiting since that time to file your I-485 final stage adjustment of status application. Maybe you have a spouse using an H-4 EAD and you know that the Trump Administration plans to eliminate the H-4 EAD ‘any day now’. 

Note that the “high water mark” for EB-2 India was back in March 2012, when the cut-off date was May 1, 2010, meaning that everyone with EB-2 India priority dates before May 1, 2010, has had a chance to file I-485 applications but everyone with EB-2 India priority dates after May 1, 2010, has never had a chance to file I-485 applications. March 2012 was the ‘best month’ for EB-2 India, so far. But because the pipeline got so filled at that time, the cut-off dates have never returned to May 1, 2010.

So, let’s say you have a EB-2 priority date from June 2010, or maybe 2011, and in the coming months you think EB-3 (Third Preference) cut-off dates will move forward much faster than the EB-2 cut-off date, on the theory that Demand Data for EB-3 India is low, one thing you might consider doing is getting into the EB-3 (Third Preference) queue yourself. This is possible but requires a new I-140 petition filing by your employer. Note that this does NOT require a new PERM application and new test of the labor market, rather the employer can use the existing PERM approval for a new I-140 in the EB-3 category. Note also that this option is NOT available for EB-2 NIW candidates as there is no easy way for an EB-2 NIW candidate to ‘downgrade’ to EB-3.

• Issue #2: Covering the Costs.

One question that might come up, if you pursue this and your employer is willing to do it, namely, who will cover the cost. Current USCIS rules do NOT prohibit the sponsored candidate for covering costs associated with an I-140 filing. Whereas DOL rules are strict about employers covering the cost of PERM labor certification, it is permissible for a sponsored candidate to pay for an I-140. This may be relevant in whether a downgrade is done. Note that the employer is not required to do this and the employer is always ‘in charge’ of choosing the attorney involved (if an attorney is involved).

• Issue #3: The expiration of the 9089 PERM approval.

One technical issue that exists is that anyone with a 2010 or 2011 or frankly 2014 priority date will have a PERM approval that has expired. The expiration of the PERM approval might cause you to think you cannot file the I-140; however, downgrading an existing case is one exception to the PERM Form 9089 expiration so do not be deterred by the 9089 validity period. It is not a bar to downgrade.

• Issue #4: Ability to Pay.

For any employer sponsored I-140, including a downgrade from EB-2 to EB-3, the sponsoring employer must document “ability to pay.” The issue of “ability to pay” requires documenting eligibility going back to the priority date. In some instances this may be cumbersome depending on the company and the company’s finances. It is an issue to consider when considering downgrade to EB-3. Importantly, if the EB-3 I-140 were to be denied, the EB-2 I-140 would remain intact.

• Issue #5: The availability of premium processing? Maybe…

Although the expiration of the 9089 PERM approval should not bar you from filing an I-140 as a downgrade to EB-3, it will very likely bar you from filing the I-140 via premium process. In general the premium process units will not accept an I-140 with a copy of the 9089 PERM approval. Some lawyers have reported success sporadically and it may be worth trying but often (and increasingly) the Premium Process Units will not accept ‘downgrade’ cases with expired 9089 PERM approvals.

There have been some lawyers (myself included) who have filed via regular processing, and then converted to premium without the original 9089 approval and that approach sometimes works. Overall the availability of premium processing for downgraded cases is spotty at best.

• Issue #6: Filing the I-485 with an I-140 receipt (harder than you think)

If you have an APPROVED I-140 in the EB-3 category with your retained priority date, and then your priority date becomes current per the EB-3 cut off date on the visa bulletin and USCIS filing charts, then you should be good-to-go to file your I-485 application.

But even if the I-140 is still PENDING in the EB-3 category, you should in theory be able to file your I-485 application with the EB-3 I-140 receipt notice; but as a practical matter the mailroom may reject your I-485 application without an I-140 approval. This is just one of the obscure battles associated with downgrading. And because the availability of premium processing is spotty, you might have to do battle with the mailroom with an I-140 receipt.

Anyway, hopefully this article is of some use to some people, on this admittedly strange situation that now impacts EB-2 India immigrants.

***** Issue #7 (added Sept 19, 2018): The EB3 downgrade must be done by the same employer that did the EB2 I-140 filing. If you have a pending I-485 application and have changed employers, then the downgrade does not exist as an option for you. I thought I would add this issue based on comments I have seen.

PS1: The title of this article is supposed to be clever. I believe the saying goes “Have your cake and eat it too (not EB-2)” - just in case you did not get that.

PS2: If you liked this article, or have any general questions, please comment below. This article is obviously not legal advice and you should consult your employer's attorney or an independent attorney for rigorous consideration of your specific facts.

PS3: If you hated this article, sorry you read this far! I am afraid that is 10 minutes you are never getting back!