Brief Introduction to Priority Dates
Each year, the Department of State (DOS) caps the number of employment and family based green cards that are issued to a particular country or chargeability area. If a country has a significant number of citizens apply for green cards each year, then it will have its own chargeability area. The other countries are grouped int the chargeability area of “other countries.”
When there are more Applicant’s from a specific country for a specific type of green card category than there are visas available for that year, a backlog begins to build up and new Applicant’s are forced to wait to before they are able to file their Adjustment of Status.
Each month, the DOS publishes a Visa Bulletin with a series of final action or dates of filing, one for each chargeability area and for each green category. Applicant’s from chargeability areas with a backlog must watch the visa bulletins as once the category becomes current, a visa number will be available and the Applicant can move onto the final steps of the green card category.
Based on the October 2020 Visa Bulletin, the EB2 and EB3 category has become current for a large number of Applicant’s, mainly with the EB3 category taking a large jump.
The Biggest Question Being Asked Lately, Am I able to Downgrade from EB2 to EB3?
USCIS specifically allows the use of a prior (likely expired) PERM Labor Certification if the same Labor Certification has been used in support of an I-140 during its initial 180-day validity term. This way the same employer would be able to file a new I-140 petition, under the EB-3 category, by relying on the previously-used PERM Labor Certification and without having to do a new PERM Labor Certification. Not everyone will qualify for the downgrade from an EB2 to EB3. It all depends on how the PERM Labor Certification was done. In order to qualify for the downgrade, the PERM must have been done as a Bachelor’s degree or two years of experience required in order to qualify.
In addition to the Applicant qualifying for the downgrade, the Employer must also prove their ability to pay the proffered wage from the priority date. If the date is current, which it is for many, the downgrade can be filed concurrently with the Adjustment of Status as the Visa Bulletin can retrogress at any time.
Disclaimer
This article aims to provide new information concerning USCIS’s guidance on the new Visa Bulletin and downgrading categories. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).
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