December 2013 Visa Bulletin: China and the EB-2/EB-3 Categories – Is a Downgrade Possible?

The December visa bulletin shows that the priority date for China EB-2 is 11/8/2008, while the priority date for China EB-3 is 10/1/2011 – almost three years ahead! This is an unusual circumstance. Most of the time the EB-2 classification is a faster classification, in the sense that the priority date is usually later than the EB-3 category, meaning the wait for a green card is shorter.Eternal_clock

As a result, many China/EB-2 beneficiaries are wondering if it’s possible to downgrade from China/EB-2 to China/EB-3. What can be done? In some situations, it actually is possible to file a second I-140 petition for the EB-3 category.

  • Generally speaking, it is permissible to have both an EB-2 and EB-3 I-140 petition pending or approved at the same time.
  • It is not required to file a new labor certification in many cases. Even if the labor certification requires a minimum of a master’s degree or a bachelor’s degree and five years of experience (and therefore would support an EB-2 I-140 petition filing), most of the time that same labor certification would also support an EB-3 I-140 petition filing. That is, the I-140 could be filed as a professional or skilled worker (EB-3) using the same labor certification.
    • However, keep in mind that National Interest Waiver petitions and exceptional ability cases cannot be downgraded from EB-2 to EB-3.
  • If a second I-140 petition is filed in the EB-3 category, the petition would be filed without the original labor certification, since the original labor certification would have been filed with the first I-140 petition. Generally speaking, the I-140 petition must be filed with the labor certification. However, there are exceptions to this requirement, including situations in which the labor certification was timely filed with an I-140 petition previously.
  • Likewise, if a second I-140 petition is filed in the EB-3 category, it’s likely that the labor certification will have already expired (labor certifications are valid for up to 180 days, during which time the labor cert must be filed with the I-140 petition). There is also an exception to this requirement when the labor certification was previously filed in support of an I-140 petition, during the validity period of the labor certification.
  • However, because the duplicate I-140 petition will be filed without the original labor certification, premium processing would not be available for the I-140 filing.
  • Finally, in some instances it is possible to interfile the I-140. This means that if you have an I-485 application for adjustment of status pending in connection with an EB-2 I-140 petition, in some instances it is possible to request that USCIS attach the newly filed I-140 petition to the pending I-485 application for adjustment of status.

While it is unusual for the EB-3 priority date to be earlier than the EB-2 priority date such as it is now for China, many applicants may be able to take advantage of the earlier EB-3 priority dates. If you have questions or need assistance with this process, we are happy to help. Please contact us at 804-396-3412 or

Recent blog posts

Great news for those applying for naturalization to become a US citizen! USCIS will now continue to use the 2008 version of the civics test. In the last days of the Trump administration, USCIS announced that they would use a longer and harder version… Read More
By Nikita Hernandez, Sumner Immigration Law Paralegal It’s official! You’ve become Mr. or Mrs. and want to take on your spouse’s name while getting your US permanent residence situated, but when is the best time to do that? APPLYING FOR A NAME… Read More
One of the most common questions that we receive from our clients is about case processing time. The USCIS and DOL estimated case processing times are available online, but that source can be frustrating as they sometimes give a wide range of timefra… Read More

Read More Blog Posts

“Emily Sumner is working with Gravitonus since 2009 and I am writing with great pleasure to recommend her work for the company. We’ve done a lot of business together over last years and I know Emily as a bright person, an expert in the law, who…”
– Alex K.
“Emily is a great attorney for any issues that fall under her domain.She is easily approachable, prompt and is an expert in her field…I can write endlessly about her ..She stands high above in terms of knowledge and client skills amongst all the…”
– Rohit A.

More Client Reviews