EB-3 downgrade from EB-2 refers to an applicant who already has a case in the EB-2 category refiling an I-140 petition under the EB-3 category to take advantage of a more favorable visa bulletin date. This is a legal strategy used by many applicants born in countries with large backlogs. This article helps you understand the nature of an EB-3 downgrade from EB-2 and the points to consider before deciding.
How an EB-3 Downgrade from EB-2 Works
At certain times, the EB-3 priority date becomes “current” sooner than EB-2 for the same country of birth. In that case, the applicant can file a new I-140 petition under the EB-3 category while requesting to retain the earlier priority date from the previously approved EB-2 petition.
According to guidance from U.S. immigration authorities, if the earlier labor certification (PERM/ETA-9089) is still valid and sponsored by the same employer, the applicant generally does not need to obtain a new labor certification. The employer files a new I-140 petition together with a copy of the approved labor certification and evidence of ability to pay the offered wage.
When You Should Consider a Downgrade
A typical scenario is when the visa bulletin shows EB-3 becoming current sooner than EB-2 for applicants born in your country. In that case, switching to EB-3 helps shorten the wait to file an adjustment of status application (I-485).
An important factor: if the EB-3 priority date is already current, the applicant can file the I-140 and I-485 petitions concurrently. This opens the ability to apply for a work permit and a re-entry permit while the case is pending.
Benefits and Drawbacks to Consider
The biggest benefit is shortening the wait time while retaining the original priority date. This is a widely used approach, so immigration authorities are quite familiar with the process.
The drawback is that the visa bulletin can reverse at any time, causing the EB-3 category to become backlogged again. Refiling the petition also incurs additional cost and time. You should refer to official information on the EB-2 category and an immigration attorney before deciding, since every case has its own circumstances.
Summary
An EB-3 downgrade from EB-2 is a useful tool when the visa bulletin favors the EB-3 category. However, it is a strategic decision that depends on the country of birth, the validity of the labor certification, and how stable the visa bulletin is. You should weigh it carefully and seek professional advice before refiling.
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References
- USCIS — Employment-Based Immigration: Second Preference EB-2: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2
- USCIS — Employment-Based Immigration: Third Preference EB-3: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-third-preference-eb-3
Read more: Overview of the EB-3 visa for US immigration · EB-3 Mandatory Vaccinations When Filing the Petition
