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EB2 to EB3 Downgrade

How to Downgrade from EB2 to EB3 Visa

When dealing with complicated immigration forms and processes, it’s important to get legal advice from a trusted attorney. At Ybarra Maldonado Law Group, our Phoenix immigration attorneys have extensive experience helping clients navigate the complexities of immigration in the United States.

If you’re struggling with certain immigration processes or forms, we’re here to help, as well as to offer a positive attorney client relationship. Please call or text us today at 602-910-4040 to schedule a consultation.

Difference Between EB2 Visa and EB3 Visa

eb2 to eb3 visa

Many parallels exist between the EB2 and EB3 visas. Both lead to permanent residency, or a green card, and are only available to persons who want to work in the United States in the future. They do, however, have a lot of distinctions.

Both the EB2 and EB3 immigration visas are based on work. This implies that, in most situations, you will need to be sponsored by a US business. Furthermore, no other qualified and willing American laborers are available for the position.

These visas both provide you with permanent residency in the United States. As a permanent resident, you are entitled to a number of advantages, including the ones listed below.

  • The right to both live and work in the United States
  • An easier time entering and leaving the United States
  • The ability to sponsor your family members for the benefits of immigration
  • Start the process of getting US citizenship as a permanent resident
  • Ability to attend school in the United States

Both visas offer several advantages and may be beneficial to you. It is critical, though, that you comprehend the distinctions. This will allow you to identify which visa is most suited to your needs.

EB2 Visas

The EB2 visa is the second-preference option for getting an employment visa. People with advanced degrees or remarkable abilities are eligible for this visa. Master’s degrees or their international equivalents are considered advanced degrees. An EB2 visa may also be available to those with a bachelor’s degree (or equivalent) and five years of work experience.

Anyone having exceptional talent in their specialty is considered outstanding. This can be demonstrated by awards, employment experience, or other proof. People who will work in the country’s interest can also apply for an EB2 visa. This might include healthcare workers who will be stationed in low-resource locations.

EB3 Visas

The third-preference option for getting an employment visa is the EB3 visa. The EB3 visa is the third-best option for getting a job. Professionals, tradespeople, and unskilled employees are all eligible for this visa. Professionals are those who have earned a bachelor’s degree or its international equivalent.

People with two or more years of relevant job experience are considered skilled employees. People with fewer than two years of relevant job experience are classified as unskilled employees.

EB2 vs EB3

The first main difference between the two visas is their categories of preference. Both of them are employment visas, but the EB2 is a second preference visa, while the EB3 is a third preference visa. This basically means that EB2s receive preference over EB3s, just slightly.

Both of these visas make up around 28.7% of the total approved employment visas. Notably, if there is more supply than demand for the EB1 visa, the EB2 visa can fill the rest of the spots reserved for the EB1 visas.

The same can happen with the EB3 visa. If there is more supply than demand for the EB1 or EB2 visa, then the EB3 visas can fill the rest of the reserved spots. However, they do not qualify for these reserved spots if there are higher preference visas ahead of them.

EB2 visas have a higher priority, which implies that the requirements to get one are more stringent. If you qualify for both the EB2 and EB3 visas, it may be more advantageous to apply for one rather than the other. You should speak with an experienced immigration lawyer in Phoenix about which visa would be the optimum fit for your situation. For example, the nation where you were born may be a significant factor in determining your wait time.

There are a few more forms of employment-based green cards besides the EB2 and EB3 visas. Priority workers are eligible for the EB1 visa. It has the most stringent qualifications, and only a few people will be eligible. Only particular workers are eligible for the EB4 and EB5 visas. As a result, the EB2 and EB3 visas are the most popular. There are also green cards depending on familial relationships. This implies that your green card petition would be sponsored by a family member rather than an employer.

How to Get an EB2 to EB3 Downgrade

To achieve an EB2 to EB3 downgrade, the employer of the applicant has to file an I-140 Alien Worker Petition, along with a PERM labor certification. A PERM labor certification indicates that the US-based employer tried but failed to recruit a qualified US employee.

If the candidate continues to work for the same company, this PERM labor certification might be the same PERM labor certification used to apply for the EB2 visa. The new PERM labor certificate must be presented if the applicant gets a new employer or is unemployed.

The candidate must work for the employer who hired them for at least six months before being allowed to change jobs. Premium processing, which is generally available for visa applicants and allows you to speed up the process by paying a fee, will not be accessible if your prior company applies under this program.

Because filing the original PERM labor certificate is a requirement for seeking premium processing, this is the case. The same certificate from the prior EB2 application is already in the possession of the USCIS in this case. Despite this, there is still a way to expedite the process by filing EB3 i-140, i-485, and EB-2 PERM in normal processing. The waiting i-140 can be converted to premium processing after the receipt numbers are issued.

Premium processing can be obtained if your i-140 is filed at the same service center that previously issued your i-140. The candidate can then submit a Form I-485, Application to Adjust Status, along with the associated EAD work permit and advance parole travel applications after the new EB-3 I-140 petition is granted and the EB-3 priority date is valid.

Because the primary purpose of the EB-3 downgrade is to file an I-485 adjustment of status, and because no one knows how long the great Visa Bulletin cutoff dates will persist, it is strongly suggested to file both the I-140 EB-3 downgrade and the I-485 at the same time in most circumstances.

Do I Need a New PERM to Downgrade from EB2 to EB3 With the Same Employer?

PERM Labor Certifications that were previously used to promote an EB-2 petition can now be utilized to support an EB-3 petition for the same employer and job. The downgrading procedure, in this case, is submitting a new I-140 petition with USCIS utilizing the prior PERM Labor Certification.

Can I Upgrade from EB3 to EB2?

Transferring an EB3 visa to EB2 might save applicants a lot of time. The real waiting period for some of these people can be reduced by as much as 5 or 10 years.  It is possible to go from an EB3 to EB2 by accepting a new employment offer from the same or a different company. Furthermore, in some situations, an Advanced Degree earned or experience gained while at your present job may be utilized to meet EB2 criteria.

What Is a Downgrade Case?

To put it simply, a downgrade case occurs when an employer submits an I-140 application in the EB3 category based on a PERM labor certification authorized for an EB2 category post. A downgrade I-140 petition may be a desirable choice in circumstances where the EB3 category has a more beneficial cutoff date since the EB2 priority date can be transferred for use with the EB3 case.

What Is the USCIS Policy on Downgrade Cases?

eb2 to eb3 visa

There does not appear to be a specific policy for downgrade submissions at US Citizenship and Immigration Services. However, such submissions are not prohibited by law or regulation. Furthermore, the USCIS appears to regard an I-140 downgrade file roughly the same as any other I-140 petition, given how these cases have been judged in the past.

What Are the Risks of a Downgrade from EB2 to EB3?

The main benefit of an EB2 to EB3 downgrade is to obtain the pending I-458 status. However, the process is not without certain risks. We list these risks below.

  • The USCIS might deny your EB2 to EB3 downgrade on the grounds that the employer cannot pay your wages. They do not generally revoke the EB2 if the EB3 downgrade is denied, but it is possible for them to issue a Notice of Intent to Revoke.
  • If your EB2 to EB3 downgrade succeeds, then you lose your H1B status, as your forms now show your work authorization as EAD.
  • Returning to your H1B status is not easy. In order to apply for the H1B visa, you must leave the US and go to an embassy. Even then, however, there is still a chance of denial.

Benefits of EB2 to EB3 Downgrade

As we stated above, the main benefit of the EB2 to EB3 downgrade is the pending I-458 status. This status allows you to access I-458 EAD and advance parole.

How Long Does It Take to Downgrade from EB2 to EB3?

Regular processing and premium processing times do not start immediately. The USCIS must first find the original PERM approval and confirm the premium processing start date. Your employer must submit the premium processing request with the original PERM approval attached. They can find the original from the previous PERM file. Generally, the EB2 to EB3 downgrade premium processing time takes at least 6 months, if not longer.

Phoenix Immigration Attorney for EB2 and EB3

If you feel that you’re drowning in paperwork and complicated processes, you need a qualified attorney with specialized knowledge about various immigration matters. Ybarra Maldonado Law Group are here to help with your employment authorization, status application, downgrade petition, final action, and general information purposes.

We value each and every attorney client relationship, so you can rest assured that you won’t be just another number. For more information about how we can help foreign nationals, those with a master’s degree, skilled workers, and other workers, contact us today. Call a Phoenix immigration attorney with our firm at 602-910-4040 or fill out our online intake form.

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