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.
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 firstname.lastname@example.org.
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