The green card waiting times for family and employment-based categories are notorious for being lengthy, with processing times for some cases spanning decades. Traditionally, the higher the preference level of the applicant, the shorter the waiting time. For this reason, many past applicants, especially those from higher populated nations with extensive waiting times, such as India and China, have attempted EB-3 to EB-2 green card porting to lessen their waiting time. However, in response to comprehensive immigration reform and the COVID-19 pandemic, an unprecedented phenomenon is occurring in which immigrant EB-3 green card applicants from India and China are experiencing shorter waiting times than their EB-2 green card applicant counterparts.

 

• Background

Typically, the Department of State limits annually the number of employment- and family-based green cards that are available to a particular country. The long waiting times for green card issuance arise due to this limit being reached and a backlog being created. Applicants on the backlog then have to wait several months or years to receive their immigrant visa number, which is required for them to file their I-485 or begin the consular process. Their wait time is dependent on their priority date. The Department of State publishes a bulletin monthly in which they post “final action dates” for each nation (or chargeability area) and each green card category. Applicants on the backlog must pay attention to these published final action dates. Once their final action date in their category and chargeability area matches or passes their priority date, an immigrant visa number will become available to them and they may move on to the final steps of the green card process. Ultimately, this results in applications that exceed per-country limits, particularly impacting applicants from more populated countries like India and China. This results in a backlog of their priority date, which means they must wait years for their priority dates to become current.

 

• Difference between an EB-2 Visa and EB-3 Visa

The EB-3 is a relatively easy green card to qualify for in comparison to the EB-2. The EB-3 green card requires the applicant to have a job offer from a U.S. employer that is full-time and isn’t seasonal or temporary. The EB-2 requires satisfaction of those same requirements, as well as the completion of an advanced degree or a display of “exceptional ability” in the applicant’s field. This typically results in fewer EB-2 applicants and thus, shorter waiting times for that group. This is why many applicants in the past have opted to port their petition from an EB-3 to EB-2 classification in an attempt to speed up their processing time.

 

• Changes in EB-2 and EB-3 Priority Dates

However, according to the Department of State Visa Bulletin for June 2021, the current final action date for EB-3 petitions from India is November 1, 2011, while the final action date for EB-2 petitions from India is December 1, 2010. Similarly, the final action date for EB-3 petitions from China is September 1, 2018, while the final action date for EB-2 petitions is May 1, 2017.

While this may appear insignificant, the benefit becomes clearer when looking at the “dates for filing” which are listed further down the visa bulletin. Green card applicants whose priority date occurs before their designated date for filing can sometimes file their I-485 forms to adjust their status earlier than their final action dates. We saw this in October 2020 when dates advanced significantly and USCIS announced that it would use the dates for filing chart instead of the final action dates chart. The filing date for EB-3 applicants from India is January 1, 2014, while the filing date for EB-2 applicants from India is August 1, 2011. This means that EB-3 applicants would receive their green cards two and half years before their EB-2 counterparts. For Chinese applicants on the dates for filing chart, the filing date for EB-3 applicants is January 1, 2019, while the filing date for EB-2 applicants is January 1, 2018.

Considering the drastic difference in waiting times, green card applicants from China and India may want to consider what is commonly referred to as an EB-2 to EB-3 “downgrade” to cut down their waiting time.

 

• Pros of downgrading an EB-2 to an EB-3 Classification

There are several benefits for applicants from China and India hoping to downgrade their EB-2 classification to an EB-3 classification. The primary benefit is that, given the stringent requirements for an EB-2 visa, all qualifying EB-2 applicants would be instantly eligible for the EB-3 classification. And with the changes in priority dates, an applicant who opts to downgrade their EB-2 classification to an EB-3 classification can keep their EB-2 filing date for their new EB-3 application, thereby improving their place in line. Once their priority date becomes current and their visa number has been issued, an applicant can then move on to the submission of their I-485. With an I-485 application, they will also have the ability to apply for an EAD card, which allows them to work in the U.S. until their green card is issued.

Furthermore, there are benefits for nonimmigrant visa holders, such as H-1B and L-1, who downgrade their EB-2 to an EB-3 classification application.  Having an I-485 EAD allows the applicant to stay in the United States in the event that they are laid off. Additionally, an H-4 spouse can work with an I-485 EAD even if they lose their H-4 EAD.

 

• Cons of downgrading an EB-2 to an EB-3 Visa

The most notable negative aspect of downgrading is the procedure. The EB-3 downgrade will require an applicant’s employer to submit an additional I-140 petition with the associated fees, such as the filing fee, premium processing fee, and attorney fee. The new I-140 will require new forms, new evidence of the employer’s ability to pay the proffered wage, and potentially an updated employment verification letter. These documents will most likely be identical to the applicant’s original EB-2 petition and the required supporting documents will be the same documents used in the earlier EB-2 petition. The process is repetitive but relatively straightforward.

In some cases, employers may wish to avoid these extra costs and not support an EB-2 to EB-3 downgrade. However, some employers will still support the filing if the employee bears some or all of the costs.

 

• EB-2 to EB-3 Downgrade: Step-by-Step Process

If an applicant is working for the same employer that sponsored their initial EB-2 petition, here is the detailed step-by-step process for downgrading to an EB-3 classification:

1. The applicant and their employer must prepare and submit an I-140 package requesting EB-3 classification using the previously certified PERM that was used in their EB-2 petition. 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 new I-140 petition must be submitted with a copy of a previously certified ETA 9089 and proof that the applicant meets the minimum requirements of the position listed in the certified ETA 9089. Moreover, the employer must submit evidence to prove their ability to pay the proffered wage. Employers can complete this step by attaching copies of their last 2-3 federal tax returns, financial records, as well the applicant’s W-2 and pay stubs.
3. If the filing date for EB-3 becomes current, the I-485/I-765 and I-131 applications can be filed by the applicant concurrently with the I-140 request. This enables the applicant and their qualifying dependents to receive EAD’s 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.

1. 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 processing, then it will take 4-5 months to adjudicate the I-140 downgrade.

In the event that an applicant wants to downgrade their EB-2 petition to an EB-3 with a different employer, a new PERM will likely be required along with the new I-140 for the EB-3 classification. Other than the addition of the new PERM, the process should remain the same.

Ultimately, the type of green card or classification does not change the benefits. All green cards, regardless of their requirements, result in legal permanent residence for the holder. Green cards are typically valid for ten years at a time and only need to be renewed, meaning that a simple extension filing is all that is needed, rather than a whole new green card application. Therefore, downgrading from an EB-2 to an EB-3 does not restrict any green card benefits that would have otherwise been received. An EB-3 downgrade is best handled by an immigration attorney who can review the specifics of each case to ensure success upon the first submission of the required documents. We have seen significant delays and disruptions on cases that were filed hastily and without proper supporting forms, letters, and documents.