EB-2 Upgrades for India-Born Pending EB-3 Downgrades
The November 2021 Visa Bulletin shows that for India, the EB-3 Preference visa availability dates have moved back (“retrogressed”) from Jan. 1, 2014 to Jan. 15, 2012. One year ago, many India born employment-based green card applicants with EB-2 priority dates between May 15, 2011 and Jan. 1, 2015 had worked franticly with their employers to file applications with U.S. Citizenship and Immigration Services (USCIS) to “Downgrade” their EB-2 approved petitions to EB-3 in order to be eligible to file their applications for Adjustment of Status (AOS) while the window to file such applications remained open. Now, those applicants are questioning whether they can “Upgrade” back to EB-2.
The background is that historically, an applicant became eligible for a green card faster under the higher EB-2 preference category (for jobs requiring a master’s degree or bachelor’s degree and five years of experience) compared to the EB-3 preference category (for jobs that required less education or experience). However, during October 2020, EB-3 applicants with priority dates earlier than Jan. 1, 2015 were allowed to apply for Adjustment of Status, while EB-2 applicants required priority dates earlier than May 15, 2011. This was because USCIS allowed AOS applicants to use the “Filing Dates” listed in the October 2020 Visa Bulletin instead of “Final Action” dates.
Note that even after USCIS has completed its processing of the AOS application and is ready to approve the application, the green card cannot be issued unless visas are available as shown in the Final Action date of the Visa Bulleting at that time. For October 2020, the Final Action dates for India were Sept. 1, 2009 for EB-2 and Jan. 15, 2010 for EB-3. During the past year until October 2021, India Final Action dates for EB-2 continued to move forward from Sept. 1, 2009 to Sept. 1, 2011. The EB-3 Final Action dates also moved forward to Jan. 1, 2014.
However, the November 2021 Visa Bulletin shows that while the Final Action Date for India EB-2 moved forward to Dec. 1, 2011, the EB-3 date retrogressed to Jan. 15, 2012. The prediction is that the EB-3 India date will continue to retrogress.
So, if you have an EB-2 approved Petition and filed a “Downgrade” to EB-3 with an AOS application which is still in process at USCIS, can you switch it back or Upgrade to EB-2, and if so how?
For now, an upgrade is advantageous if your EB-2 priority date is earlier than Dec. 1, 2011. In the coming months, it may be relevant to more applicants if the EB-2 date advances further. Predictions on how the dates will progress is a topic for another article, but there is a lot of discussion among immigration attorneys about options to utilize the EB-2 priority date. Some are suggesting that you file a new AOS application with full documentation and filing fees. Others are suggesting that you “interfile” a request to USCIS to use the EB-2 petition.
If you file a new application, USCIS will certainly accept the application. The downside is that you have to pay the filing fees all over again. Also, the new AOS application will be processed as of the date received by USCIS. You would lose any benefit from the fact that the existing application has been in process for almost a year.
The other option is to request USCIS to “Transfer” the pending AOS application from the EB-3 petition to the approved EB-2 petition. An applicant may submit a transfer request, in writing, to the USCIS office with jurisdiction over the application if eligibility can be established. Generally, no new adjustment application or filing fee is required. The concern with the Transfer request is that there is no established method for confirming that the request was received by USCIS and is in process.
You should be aware that whether you file a new AOS application or request a Transfer, you must be fully eligible for adjustment of status at the time the application or request is received by USCS. If you allowed your underlying non-immigrant status to lapse because of the pending AOS application, you may not be eligible to apply again or request the transfer. A pending AOS application is not the same as maintaining non-immigrant status. Also, an H-4 spouse who worked with employment authorization based on the AOS application (code c9) is generally no longer maintaining the H-4 status. In addition, if you traveled abroad and entered with Advance Parole, you are not in a valid non-immigrant status and may not be eligible to file the new AOS application or request a transfer. This is an important factor to keep in mind if you are planning to travel with Advance Parole. Further, a Transfer or new AOS application may impact eligibility for dependent children to maintain eligibility as children under the Child Status Protection Act. Also, impacted would be eligibility to take advantage of AC21 job portability which requires the AOS application to have been pending for more than six months. For these and other reasons, each application must be fully and individually analyzed with the assistance of an experienced immigration attorney before any action is taken.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email email@example.com