On March 10, in the case of ITServe Alliance v. L. Francis Cissna, U.S. District Judge Rosemary M. Collyer invalidated several USCIS policies that caused H-1B
Each country will be allotted 7% of the total Immigrant visas available. India and China are heavily oversubscribed. The wait for India is especially long as the demand is extremely high. While the waiting period is usually shorter for Employment Based category-2 (job requiring a master’s degree), as compared to Employment Based Category-3 (jobs requiring a bachelor’s degree or lower) it is not always the case.
The priority date which is the date when you apply for the Labor Certification (or I-140 if Labor Certification if labor certification is not needed) shows your place in the queue, when it comes to processing of your Green Card. The priority date has to be compared to the final action dates or dates for filing released each month through the Department of State’s monthly visa bulletins. If your priority date is earlier or the same as the dates in the visa bulleting, you can file for the final step of your Green card (adjustment of status or I-485). The USCIS decides, on a monthly basis, which cutoff dates (whether dates for filing or final action dates) are to be used. For October 2019 and November 2019, the dates for filing must be used for Employment-Based Preference Filings. These dates, for each country, progress or regress depending on the number of persons who have applied for green cards in each particular country and the annual limit for each country. For instance, if too many Chinese nationals apply for EB-2, then the cutoff dates for China would likely retrogress, thus lengthening the waiting time.
Over the past several years, there has been an increase in people petitioning for the EB-2 India category than the EB-3 India category. As such, cutoff dates for EB-2 India isn’t progressing as quickly as cutoff dates for EB-3 India. In fact, from September 2019 to the October 2019, EB-3 India’s final action date moved from 01JUL05 to 01JAN09. This is a leap of 3.5 years. EB-2 India on the other hand, moved from 08MAY09 to 12MAY09, a meager progression of 6 days.
For the November 2019 bulletin, dates for filing (which is to be used for the month) for EB-3 India (which is 01FEB10) is currently ahead of EB-2 India (which is 01JUL09) by 7 months.
With this in mind, it may be better to downgrade from EB-2 to EB-3 if you are an Indian national and you have an approved I-140 for EB-2. This needs to be done as soon as possible, so that you can file your Green Card before the end of November, to take advantage of the current dates in the visa bulletin.
WHY EB-5 INDIA IS MOVING MUCH FASTER THAT EB-2 INDIA?
Over the last several years, the EB-2 has generally been ahead of EB-3 India by 2 to 3 years. As such, over the last several years, many EB-3 India applicants upgraded to EB-2 to take advantage of the earlier cutoff dates. At the same time, new applicants insisted on having their applications processed under the EB-2 category so as to have a shorter wait period. Consequently, the resulting high demand for EB-2 India caused the category’s movement to slow down. As the EB-3 India category did not see as much demand as EB-3 India, the final action dates and dates of filing for EB-3 India has moved much quicker.
This is quite similar to what happened to EB-2/EB-3 China when the cutoff dates for EB-3 advanced much faster and finally became more favorable. This allowed a limited amount of people take advantage of this situation until the cutoff dates for EB-2 China and EB-3 China eventually evened out.
The same thing is happening for EB-2/EB-3 India.
The main benefit of downgrading is down to the ability to file an I-485 (Application to Register Permanent Residence or Adjust Status) to adjust your status. Filing an application for Adjustment of status allows you to acquire an independent Employment Authorization Card as well as travel (advance parole) permits. Also, you can port the green card process to a new employer. This allows you to switch employers.
However, this advantage is only available to a few applicants. The applicants who are well organized, and applicants who proceed quickly. Factors key to success include :
1. Having a good priority date which can become current once you downgrade.
2. Having the employer’s support. This enables for quick filing.
3. And having an experienced attorney.
HOW DOES DOWNGRADE WORK ?
The downgrade process can be done using the same PERM Labor Certification for the EB-2 petition. As such, there is no need for a new PERM when downgrading as the original EB-2 PERM Labor Certification can be used. However, a new I-140 has to be filed for the EB-3 category. Similarly, you can file the I-485 to adjust your status alongside the EB-3 I-140. This is possible for an EB-3 petition by the same employer for the same position.
Also, if the I-140 is filed with the same service center as the previous I-140 petition, premium processing is allowed. Using premium processing cuts down processing time. However, premium processing is not permitted by the USCIS when the EB-3 I-140 is filed without an original PERM Labor Certification.
Processing of the new I-140 usually takes anyway between a few weeks to as long as seven depending on whether premium processing is used or not. While it may take just a day or two to prepare the documentation needed, the USCIS has to process the submitted documents. If eligible for premium processing, the USCIS will process the case in 15-days. If you have to use normal processing times, it generally takes 5.5 to 7.5 months at the Nebraska Service Center, and 3.5 to 6 months at the Texas Service Center.
In order to benefit from the more advanced EB-3 India’s dates for filing, you need to be prepared and act fast. Also, the EB-3 cutoff dates advancements do not automatically necessitate a downgrade. It is essential to know if a downgrade will benefit you. Additionally, you need a good attorney in order to take advantage of the current situation. The Law Offices of Prashanthi Reddy is ever ready to assess your case, help with the EB-2 to EB-3 downgrade process, and ensure you are on the right path.
- U.S. Citizenship and Immigration Services (2019). Check Case Processing Times. Retrieved October 30, 2019
- U.S. Citizenship and Immigration Services (October 10, 2019). Adjustment of Status Filing Charts from the Visa Bulletin. Retrieved October 30, 2019
- U.S Department of State. (2019). The Visa Bulletin. Retrieved October 30, 2019