The Department of State released the October 2020 Visa Bulletin (first for Fiscal Year 2021) and has brought with it some good news! With regards to Employment-Based immigrant visas, the October Bulletin provides projections through January 2021. The Department predicts the following potential monthly cut-off date movements:
- EB-1: Remain current for all countries except India and China. Rapid forward movement for India and China.
- EB-2: Remain current for all countries except India and China. Rapid forward movement for India and China.
- EB-3 Professionals and Skilled Workers: Remain current for all countries except India and China. Rapid forward movement for India and China.
- EB-5: Remain current for all countries except China and Vietnam. No forward movement for China and limited forward movement for Vietnam.
Below is a summary of the cut-off dates, specifically for Employment-Based Second Category (EB-2) and Employment-Based Third Category (EB-3)
Employment-Based, Second Preference (EB-2) Category
The EB-2 category remains current for all countries of chargeability except India and China. EB-2 India moves up to September 1, 2009, and has a May 15, 2011 cutoff date on the Date of Filing chart. EB-2 China advances to March 1, 2016, while its cutoff date on the Date of Filing chart is set at October 1, 2016.
Employment-Based, Third Preference (EB-3) Category
The cutoff date for EB-3 India moves forward to January 15, 2010. The good news is that the Date of Filing chart provides a January 1, 2015 cutoff date!
EB-3 China’s cutoff date is set at July 1, 2017, with a June 1, 2018 date on the Date of Filing chart. EB-3 is current for all other countries of chargeability.
EB-3 Other Workers
With the exception of China, the cutoff dates for EB-3 other workers are the same for each country as its respective EB-3 cutoff dates. For China, the cutoff date for EB-3 other workers progresses to December 1, 2008.
Downgrading from EB-2 to EB-3
Downgrading to EB-3 will result in the ability to file I-485 adjustment of status. This has many benefits but the main reason and benefit for most Indian nationals to downgrade from EB-2 to EB-3 is to be able to file I-485 and obtain independent work (EAD) and travel (advance parole) permits (for family members too) and the ability to port the I-485 green card process to a new employer under AC21 after six months.
Process to Downgrading from EB-2 to EB-3
In our experience, if the PERM Labor Certifications are filed by the same employer and for the same position, the EB-2 petition can be used to support an EB-3 petition. If that is the case, then the downgrade process involves the submission of a new I-140 petition filing with USCIS using the prior PERM Labor Certification.
USCIS specifically allows the use of a prior (expired) PERM Labor Certification if the same Labor Certification has been used in support of an I-140 during its initial 180-day validity. This way the same employer can file a new I-140 petition, under the EB-3 category, by relying on the previously submitted PERM Labor Certification and without having to do a new PERM Labor Certification.
USCIS does not allow premium processing where the I-140 petition is being filed without an “original” PERM Labor Certification; however, there is an exception to requesting premium processing for I-140s filed without an original PERM Labor Certification if the new I-140 is being filed with the same service center as the prior I-140.
When the new EB-3 I-140 petition is approved and the EB-3 priority date is current, the applicant can then file a Form I-485, Application to Adjust States, together with the companion EAD work permit and advance parole travel applications.
Downgrading to EB-3 does not automatically invalidate the prior EB-2 petition making it possible to go back to the EB-2 petition if that category ends up being current first. An approved EB-2 I-140 remains valid unless an employer withdraws it, so there is no need to file again.
Murray Osorio is ready to assist in the EB-2 to EB-3 downgrade process and allow foreign nationals to take advantage of this opportunity. Our office is able and willing to analyze each case and provide suggestions on whether a downgrade is an appropriate strategy.