An EB-2 I-140 may be downgraded in certain circumstances to take advantage of progressing priority dates. ZP has recommendations on when this can be beneficial and other considerations in pursuing this path.
What is an I-140 downgrade?
Individuals with an advanced degree or with “exceptional ability” are eligible to petition for an employment-based second preference (“EB-2”) I-140. The EB-3 I-140 is designed for “skilled workers” and “professionals.” A downgrade is when an individual who has an approved EB-2 I-140 petitions for an EB-3 I-140.
What is the benefit of downgrading?
The benefit of downgrading depends on the priority dates provided in that month’s visa bulletin, which govern who is eligible to petition for permanent residency. When the priority date for EB-3 individuals is more recent, or even current, compared to the priority date for EB-2 individuals, a foreign national may benefit from downgrading. This is because they may be eligible to apply for permanent residency sooner than if they maintained their EB-2 I-140.
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Who should consider filing an I-140 downgrade?
Based on the March 2024 visa bulletin, foreign nationals from China and India with an approved EB-2 I-140 could potentially benefit from downgrading to an EB-3 I-140. This is because the priority date for EB-3 I-140s is more recent than for EB-2 I-140s. The dates for Chinese foreign nationals are January 1, 2020 (EB-2) compared to September 1, 2020 (EB-3), indicating that Chinese foreign nationals who maintain their status in the EB-2 category may wait up to 9 months longer before petitioning for permanent residency compared to those who downgrade. The dates for Indian foreign nationals are March 1, 2012 (EB-2) compared to July 1, 2012 (EB-3), indicating that Indian foreign nationals who maintain their status in the EB-2 category may wait up to 4 months longer before petitioning for permanent residency compared to those who downgrade.
Can I premium process an I-140 downgrade?
Yes, EB-3 I-140 petitions can be premium processed for a fee of $2,805. If you choose to pay for this service, your EB-3 I-140 petition may be adjudicated within 15 days. However, there may also be a difficulty in premium processing your petition because the original Permanent Labor Certification (“PERM”) is a required component of an EB-3 I-140 petition.
Original PERM paperwork would have been sent to United States Citizenship and Immigration Services (“USCIS”) with your initial EB-2 I-140. Thus, the USCIS may not be able to locate and transfer the original document within the 15-day window for premium processing. If the adjudicator determines the window is implausible, the premium processing request will be rejected. This can be refiled several weeks later, giving the USCIS the time required to locate and transfer the original PERM paperwork. Zulkie Partners monitors this closely for our clients and will keep individuals filing for a downgrade informed as to the status of their premium processing request.
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Is downgrading a new process?
Downgrading is not a new process but has become more common in the last several years. It used to be that a majority of I-140 petitions were filed in the EB-3 category, so the EB-2 priority date was always the more recent of the two. As workers began to obtain more education to remain competitive in the global market, more and more foreign nationals began to qualify for the EB-2 category, making those wait times longer and providing an incentive to downgrade.
Please do not hesitate to contact Zulkie Partners if you have any questions related to your I-140 or if you think you might be a good candidate for a downgrade.