EB2 to EB3 Downgrade Process, Risks (Premium, Cover Letter)

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Your current employer with an approved I-140 (from EB-2) with a priority date that is current in EB-3, can downgrade your case using the same EB2 PERM and file a new I140 with the EB3 category.

There is no need to file a new PERM for downgrading from EB2 to EB3. EB2 PERM can be used for EB3 downgrade.

Should I downgrade (Check using the App)?

Estimate my GC Date

EB2 to EB3 Downgrade Process

Check if your PERM expired without filing i140 here or not. You can also file your I-485 application to adjust your status concurrently with this new EB3 I-140.

Same vs New Employer – EB2 to EB3 Downgrade

EB2 to EB3 Downgrade – If EB2 date is current in EB3

#1 Same Employer

No change in the job position

1. Use EB2 PERM. No new PERM is required.
2. File new EB3 i-140 in premium.
3. File i-485 concurrently with i-140.

#2 Different or Same Employer
Including Amended i-140 after merger/acquisition, amended i-140 after merger/acquisition, Promotion, or job detail change

1. New EB2 or EB3 PERM is required with the current employer.
2. File new EB3 i140. Porting GC date from old i140 allowed.
3. File i485 concurrently with i140.
4. Supplement J is required.

Immigration Attorney Advice for EB2 to EB3

You can hear immigration Rahul Reddy and Ryan Wilck discuss the EB2 to EB3 downgrade options, risks, and benefits.

Is New PERM Required?

New PERM is not required unless you got promoted or moved out of state and want to file i485 using this new location and job position.

You can go back to work with the old job position at the old job location mentioned in PERM to file i485.

This is a much better option as it saves you from the hassle of filing a new PERM. Go back to the old location, work there for 6 months after getting a Green card, and then you should be good to move on.

Premium Processing for Downgrade

You can file EB2 to EB3 downgrade I-140 in premium processing but allowing it is based on USCIS discretion.

Basically, when you file the downgrade, the original PERM labor certificate won’t be filed with the new EB3 i140. USCIS already has the original EB2 PERM in your EB-2 I-140 file.

• USCIS does not allow premium processing when there is no original PERM approval attached to the i140 application.
• If your downgrade goes to the same service center as your earlier EB2, then the chances of getting the premium accepted are high as the same center has your original PERM.

What Houston-based attorney Rahul Reddy suggests to be on the safe side:

1. File EB3 i-140, and i-485 along with EB-2 PERM in regular processing.
2. Wait for the receipt number for EB3 i-140.
3. Once you get the receipt number, upgrade to i-140 premium processing.
4. This helps avoid the situation in which USCIS might return all applications if they are not ready to allow i-140 premium processing.

EB3 Downgrade premium processing time:

The premium processing time for EB3 i140 also does not start immediately. The USCIS will first find PERM and then confirm the premium processing time start date.

Your employer can attach a copy of the original EB2 PERM with a request that the original be fetched from the previous PERM file.

i140 Processing Time

How Long Does it take to downgrade EB2 to EB3? The EB3 downgrade i140 approval processing is taking 6+ months.

Benefits of EB2 to EB3 Downgrade

As per my opinion and the Indians I spoke to, consider this EB3 date of filing chart as an insurance policy.

Just think of applying this downgrade as paying a premium for what I call ‘visa insurance’!

Most employers will ask you to pay for it and that is perfectly fine. My personal suggestion is to just pay for it.

If you are currently in the EB2 queue and decide to file the EB3 downgrade and then i-485, you may get these additional benefits as a backup to your H-1B visa:

1. i-485 EAD – an open work permit. You can use it to keep staying in the US if you lose your H1B job in case of layoff. No need to worry about the 60-day grace period.
2. H4 Spouse can work: H4-dependent spouse can work using i-485 EAD.
3. H1B Visa Stamping Voes: You can avoid visa stamping at the US embassy as and when you travel by using your Advance parole to enter the USA instead of an H1B visa. You can then convert back to H1B (if you want) within the US.
4. IRS Child Tax Credit – Your H4 or L2 dependent child can get a child tax credit of up to $2000.

Risks of EB2 to EB3 Downgrade

The only primary benefit of doing an EB2 to EB3 downgrade is to get the status of the pending i-485. This pending i-485 status gives you access to i-485 EAD and ‘Advance parole’.

As I said above, consider this only as an insurance policy as you may never use the EAD and AP as long as you want to keep your options open for going back to the EB2 queue.

What most attorneys suggest is that you downgrade and then keep both EB2 and EB3 i140 in hand.

Our suggestion is to not use EB3 EAD or AP unless it is absolutely required.

#1 EB3 i140 denial with ‘ability to pay‘ as the reason

It is possible that USCIS denies your EB2 to EB3 i140 for the reason that the employer does not have the ability to pay the wages. This is a serious matter and has the potential to put your EB2 i140 in danger too.

USCIS does not usually revoke the EB2 i140 if the EB3 downgrade is denied but if the USCIS officer wants, they can issue a NOIR (Notice of intent to Revoke).

You should carefully plan and talk to your employer before filing the downgrade.

Why do Employers Hesitate to File a Downgrade?

Generally, employers who do not agree to EB2 to EB3 downgrade easily worry for this very reason.

Employees may not realize it but it does add a huge financial burden and a legal requirement to keep the i140 commitment in front of USCIS. This is not a simple job and hence most employers are hesitant unless they have a big set-up and enough money to support all i140s (they have applied in past and will apply in the future).

It will be a task to convince them to file both EB2 and EB3 at the same time unless they already understand and have evaluated all pros and cons from their own balance sheet point of view.

#2 Using EAD Means Abandoning H1B/L Status

Once you start using EB3 EAD after the downgrade, you lose your H1B/L status as your I-9 form now shows the work authorization as EAD.

#3 Going Back to H1B/L status After Using EAD

Once you use EAD/AP, then going back to the H1B/L status is not easy.

• You cannot file a simple change of status from i485 EAD to H1B while staying in the US.
• You would need to go out of the US and apply for an H1B/L visa at the embassy. There will be many questions raised with respect to your ‘intent’ and there are high chances of denial.

#4 Interfile EB2 i140 if EB2 gets current earlier than EB3

• To file the i-485 in EB2 if the date gets current earlier than EB3, you will not be able to prove any underlying status which actually means any H1B or L visa status if you have already started using EAD.
• If you are still on H1B and the EB2 date gets current, you can use the concept of ‘interfiling’ to replace the EB3 i140 with the EB2 i140 and get i-485 approval.

#5 H4 child Age out protection

The CSPA law provides H4 child age-out protection if the i-485 has been filed before the age of 21.

This is currently allowed only if your i-485 has been filed using the ‘Final Action‘ dates as explained by attorney Cyrus Mehta.

If you are filing an i-485 using the DOF chart now, you may not be eligible for CSPA. It is possible that USCIS changes the rules to include the DOF chart in the future but there is no guarantee.

Check your child’s age protection if you file EB2 to EB3 downgrade using an app here.

Cover Letter – EB2 to EB3 Downgrade, EB3 to EB2 Upgrade

You can create a cover letter to send with your downgrade or upgrade application easily with our app. The app also allows you to add the receipt and A number bar code to your cover letter.

The bar codes help USCIS easily scan your previous i140 receipt or A number to quickly locate your Green card file. The idea is to make it easier for USCIS officers and mailroom executives to find your case and reduce their workload.

#Step 1

Visit the EB2-EB3 Cover letter app here.

You will need your approved i140 receipt number, approval date, A number, and PERM number to create this letter.

#Step 2

Enter your current i140 details which should be in an approved status to generate this letter. The app will not let you generate the letter if the previous i140 is still pending or has received RFE or it was denied. There is no use in sending this letter if the i140 was not approved earlier.

The letter adds tried and tested language for requesting these with your downgrade or upgrade:

• Request the porting of the priority date to the new EB2 or EB3 i140.
• Reuse the original PERM sent with the earlier i140 application.

Sample Bar Code on Cover Letter

#Step 3

Pay for the options that you have selected to be printed on the form and then generate files. Your files will be sent to you by email securely.

Print on Employer Letterhead (Recommended)

If possible, you should print this letter on the employer’s official letterhead. Note that the employer means the company who is sponsoring your i140 and not the end client.

You can easily print this cover letter on employer letterhead. There is enough space left on the top of the page to add the employer logo.

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