With Employment Based Third Category (EB3) priority dates moving faster for India, we are frequently asked if a Beneficiary in EB-2 can downgrade and convert their immigrant petition to an EB-3 classification, so that they would be able to file their I-485 and EAD for their entire family sooner (and maybe even concurrently). The answer is YES, it is possible to do so. Here are some Frequently Asked Questions:

1.     I have an EB-2 I-140 approval, how do I convert it to an EB-3 classification?

a.     Ensure your EB-2 PERM Labor Certification is eligible for conversion to EB-3 – most PERMS filed in EB-2 classification may be eligible for a downgrade to an EB-3 classification as long as the job requirements are appropriate. You should discuss your specific case with an experience immigration lawyer to ensure it is eligible for conversion to EB-3 and any associated risks.

b.     New I-140 is required by your employer – contact your employer to file a new I-140 for you using the same EB-2 PERM Labor Certification that was previously submitted to USCIS, but this time in EB-3 classification. Note that I-140 filing fees will apply. A new EB3 PERM Labor Certification may not be required.

2.     How fast can I convert my EB-2 I-140 approval to an EB-3 classification?

a.     Attorney processing time – we provide our clients a thorough checklist of documents required for the EB-2 to EB-3 conversion. Once we receive these documents for our clients, the I-140 case is generally ready to file within 2 to 3 business days.

b.     USCIS processing time – a new I-140 filing can generally take several months for USCIS to adjudicate, however cases filed in Premium Processing are generally adjudicated in 15 days. Generally, cases being filed without the original PERM Labor Certification are not eligible for Premium Processing, which would be the case for EB-2 to EB-3 conversion, as the EB-3 case is using the EB-2 Labor Certification, which has already been submitted in the prior case. However, in limited cases, if the EB-3 conversion is being filed in the same USCIS service center, then Premium Processing may be available.  However, it is our strong recommendation to file the case in regular processing and upgrade to premium once USCIS issued receipt notices.

3.     How fast can I and my dependents file for an I-485 and EAD based on the EB-2 to EB-3 conversion?

a.     Concurrent filing of I-485 and EAD – you and your dependents may be eligible to file an I-485 and EAD based on the EB-2 to EB-3 conversion concurrently if the priority dates are current.

b.     Attorney processing time – we provide our clients a thorough checklist of documents required for an I-485 and EAD based on the EB-2 to EB-3 conversion. Once we receive these documents for our clients, the case is generally ready to file within 2 to 3 business days.

4.     What happens to my EB2 I-140 petition if I downgrade to an EB3?

Filing for an I-140 based on an EB3 classification does not automatically invalidate your prior EB2 approval, which may remain valid. As such, if the EB3 I-140 is denied or withdrawn for any reason, the prior EB2 petition remains valid. That being said, USCIS will treat the I-485 filed based on the downgrade as an EB3, not an EB2 for the sake of priority dates and may reject or deny the case since the underlying EB3 petition is not approved.

5.     Can my employer and I utilize the services of a different attorney to convert from EB-2 to EB-3?

Yes, you can use the services of a different attorney to convert from EB-2 to EB-3. You do not have to use the same attorney who filed your EB-2 case.

6.     What are the risks of downgrading from EB2 to EB3?

The inherent risk in downgrading your petition from EB2 to EB3 is that your priority date is now for EB3 only. For example, if your I-485 case is pending in the EB3 category and the priority dates retrogress, your case will be pending for based on the EB3 priority dates. However, the benefit of having an I-485 pending, an EAD/AP approved is very important and most individuals will choose to have such cases pending rather than be on temporary status, as may eliminate the need to renew your H-1B status, and it may provide an EAD to dependent children.

7.     How do I start the process to convert from EB-2 to EB-3 with your firm?

Send us an email at mail@immlegal.com to set up an immediate consultation – please provide your full name and contact phone number in the email. We will get in touch with you and provide you with further instruction and a checklist of documents.

Please note this information is for general informational purposes only. It does not create an attorney-client relationship. For your specific case, we strongly recommend you contact an experienced immigration attorney. Our law firm is well-versed in immigration law and would love to represent you! Please contact us.