EB-3 Downgrade Strategy for India: What You Need to Know
The release of the October 2020 Visa Bulletin brought mixed news—while family-based categories saw setbacks, employment-based petitioners, especially those from India, noticed a rare opportunity. Many EB-2 applicants have been calling Green Card Link to ask about the EB-3 downgrade strategy, since the EB-3 final action date advanced beyond EB-2.
It is highly unusual for EB-3 to move ahead of EB-2, making this an important moment to carefully evaluate whether downgrading could benefit your case. At Green Card Link, its immigration attorneys help clients understand not only the benefits but also the risks and long-term considerations of an EB-2 to EB-3 downgrade.
Table of Contents
- Why Did the EB-3 Category for India Jump Ahead of EB-2?
- Key Differences Between EB-2 and EB-3
- How the EB-3 Downgrade Process Works
- Risks of Downgrading from EB-2 to EB-3
- Filing Date vs. Final Action Date: Which One Matters?
- Can You Downgrade to EB-3 With a New Employer?
- What If Your I-485 is Already Pending?
- What Happens to Your EB-2 Petition After Downgrading?
- Has This Situation Happened Before?
- Other Changes in Employment-Based Categories
- Considering a Downgrade? Contact Green Card Link
Why Did the EB-3 India Category Advance Past EB-2?
Several factors contributed to this rare situation, with the global pandemic being the primary driver.
When COVID-19 struck, U.S. embassies and consulates worldwide shut down, halting family-based visa interviews. Combined with federal visa bans, this created massive backlogs. Because October marks the start of the fiscal year, unused family-based visas rolled over into employment-based categories. This resulted in an unprecedented annual limit of 261,500 visas for FY 2021.
At the same time, demand for EB-2 visas from India surged, while EB-3 demand remained relatively low. Normally, EB-2 is faster because of its stricter eligibility requirements, but the imbalance in demand allowed EB-3 to leap ahead. Currently, the EB-3 India filing date is January 1, 2015—over four years ahead of EB-2’s May 15, 2011 date.
Key Differences Between EB-2 and EB-3
Both EB-2 and EB-3 visas fall under the employment-based green card categories, but eligibility requirements set them apart:
- EB-2 Visa Requirements:
- Master’s or doctorate degree, or
- Bachelor’s degree plus five years of progressive experience in the field, or
- Advanced degree in science, business, or arts with a qualifying job offer
- Master’s or doctorate degree, or
- EB-3 Visa Requirements:
- Less stringent criteria
- Skilled workers, professionals, and even some unskilled workers can qualify
- Does not require advanced degrees or highly specialized knowledge
- Less stringent criteria
Because EB-2 applicants tend to be more qualified, that category often backlogs more quickly, while EB-3 can sometimes move ahead.
What Does the EB-3 Downgrade Process Involve?
To downgrade, your sponsoring employer must file a new Form I-140, Petition for Alien Worker, while reusing the PERM Labor Certification from the EB-2 petition. To maximize efficiency, file the I-140, PERM, and I-485 Adjustment of Status concurrently.
Premium processing is often recommended, but you may only request it after USCIS issues the receipt notice, as the original PERM is required. Processing for the new I-140 and I-485 typically takes 1–2 weeks once filed.
Risks of an EB-2 to EB-3 Downgrade
While the EB-3 downgrade can accelerate your path, it carries risks:
- Filing Errors: Every new I-140 carries potential for administrative mistakes.
- Unpredictable Visa Movement: EB-3 may not stay ahead of EB-2 indefinitely, so acting quickly is critical.
- Additional Costs: Filing fees for I-140, I-485, premium processing, and immigration attorney services must all be paid again.
- Employer Cooperation: Your employer must be supportive, since they file the petition with assistance from Green Card Link immigration attorneys.
Filing Date vs. Final Action Date
Usually, USCIS directs applicants to use the final action date to determine filing eligibility. However, in October 2020, USCIS instructed applicants to use the filing date, which was more favorable. While uncommon, this happens when there are more visas available than applicants. Petitioners should always confirm which chart USCIS requires for the given month.
Downgrading With a New Employer
It is possible to downgrade with a new employer, but the process becomes more complex. You would need:
- A new PERM Labor Certification
- A new I-140 petition
- Employment verification letters
- Proof of wages
This additional documentation can delay filing, potentially causing you to miss the EB-3 advantage.
What If Your I-485 Is Already Pending?
If you have a pending I-485, downgrading to EB-3 could speed approval if your priority date is current. Always review the visa bulletin and consult immigration attorneys at Green Card Link before making changes.
What Happens to the EB-2 Petition After Downgrading?
Your EB-2 petition remains valid until USCIS approves your EB-3 I-140. If the EB-3 petition is denied, the EB-2 serves as a backup. Once EB-3 is approved, USCIS considers it your primary petition since it has the earlier cutoff date.
Has This Happened Before?
Yes. In 2018, EB-3 cutoff dates for China moved ahead of EB-2, prompting many downgrades. Eventually, EB-2 and EB-3 dates evened out. This demonstrates the importance of acting quickly before demand shifts.
Other Employment-Based Changes in the Visa Bulletin
The October 2020 Visa Bulletin saw movement across all employment-based categories. Even if the EB-3 downgrade is not the best strategy for your case, now may be the right time to revisit your options with immigration attorneys at Green Card Link.
How Green Card Link Can Help
The EB-3 India downgrade strategy can be beneficial but also risky without expert guidance. At Green Card Link, its immigration attorneys have decades of experience navigating complex employment-based cases. They provide personalized strategies to maximize your chance of success.
If you are considering downgrading, contact Green Card Link today to schedule a consultation and explore your options.