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Attorney_22

I-140 Downgrades

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This week, Murthy Law Firm attorneys will answer questions regarding the process of an I-140 downgrade petition.   

Rules for Topic of the Week Threads:

1.  Attorney's postings contain general information only and are not a substitute for case-specific legal advice.

2.  The attorney will answer only those questions which relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate forum section.

3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.

4. Please do not provide information which would identify any specific company, university or individual.
 

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1. Would like to understand the risk involved in downgrading from EB2 to EB3.

2. Can both EB2 as well as EB3 applications be active after the downgrade?

3. How does downgrade impact the overall GC case?

4. Do new PERM and 140 both need to be filed for downgrade?

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1) What qualifies for I-140 downgrades?

2) Can an employee having I-140 approved under EB2 qualifies for filing I-485 under Eb3 when Eb3 dates becomes current by downgrading I-140 to EB3?
 

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Hi, I have an approved i140 with priority date of Aug 25, 2011 under EB2 category India. If EB3 India bypasses this priority date can I apply for downgrade and I485 at the same time? Is there a possiblity that USCIS can deny a downgrade in such case?

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On 1/17/2019 at 9:42 PM, immipanda said:

1. Would like to understand the risk involved in downgrading from EB2 to EB3.

2. Can both EB2 as well as EB3 applications be active after the downgrade?

3. How does downgrade impact the overall GC case?

4. Do new PERM and 140 both need to be filed for downgrade?

A downgrade I-140 filing essentially converts your current I-140 from EB2 to EB3. When proceeding in this manner you need to be careful that the petition still meets the requirements. For instance, showing the ability to pay since the priority of the underlying labor certification, and having sufficient educational and experience documents. USCIS will not give deference to prior approvals on these issues. Another factor is more nuanced and intelligent minds may differ, however it is unclear how USCIS will proceed on a case by case basis if the EB2 date becomes current on Final Action prior to EB3 after a downgrade has been filed and approved.  

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On 1/17/2019 at 10:05 PM, mohanbabu400 said:

1) What qualifies for I-140 downgrades?

2) Can an employee having I-140 approved under EB2 qualifies for filing I-485 under Eb3 when Eb3 dates becomes current by downgrading I-140 to EB3?
 

Yes, this is possible. Often individuals will opt for the concurrent I-140 downgrade filing with the I-485. 

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On 1/17/2019 at 10:21 PM, tanmoy said:

Hi, I have an approved i140 with priority date of Aug 25, 2011 under EB2 category India. If EB3 India bypasses this priority date can I apply for downgrade and I485 at the same time? Is there a possiblity that USCIS can deny a downgrade in such case?

Yes, you can concurrently file the downgrade with an I-485 if the priority date is current. However, it is also possible the downgrade can be denied. Therefore, you will want to ensure you can continue to document the requirements of an I-140 petition. 

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On 1/17/2019 at 11:03 PM, Suneel Agrawal said:

My priority date is 7/20/2009 and I have my approved I-140 in EB2 India category. Is it advisable to downgrade to EB 3? If yes, what’s the process?

It is advisable to call our office to discussed your options. 

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On 1/19/2019 at 2:30 PM, shahchittal said:

I have a 3 year degree from India and MBA from US. I have used my MBA from US for EB2, if I downgrade to EB3 will they be using my MBA from US or my 3 year degree.

A downgrade filing does not change the requirements of the underlying labor certification, it simply changes the employment-based category. 

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On 1/22/2019 at 9:50 AM, Attorney_22 said:

Yes, you can concurrently file the downgrade with an I-485 if the priority date is current. However, it is also possible the downgrade can be denied. Therefore, you will want to ensure you can continue to document the requirements of an I-140 petition. 

Which Priority date can I use to do this filing of concurrent downgrade and I-485? Can it be the "Dates for filing" or does it need to be the "Final Action Dates"?

 

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I have Approved I-140 (EB3 Priority Date: 02/2011; I checked it shows as approved) from Employer A, and I have Approved I-140 (EB2 Priority Date: 02/2011) from Employer B.

If Employer A is ok to apply my 485 (with moving or without moving to employer A), Can I still use my Employer A's EB3 to apply for 485 when it is current?

please suggest.

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Can you please elaborate more on below statement in your response regarding concurrent EB3 downgrade 140 + 485 rejection? 

continue to document the requirements of an I-140 petition”

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On 1/25/2019 at 4:38 PM, Raj SRB said:

I have Approved I-140 (EB3 Priority Date: 02/2011; I checked it shows as approved) from Employer A, and I have Approved I-140 (EB2 Priority Date: 02/2011) from Employer B.

If Employer A is ok to apply my 485 (with moving or without moving to employer A), Can I still use my Employer A's EB3 to apply for 485 when it is current?

please suggest.

When filing an I-485 you must include evidence of a bona fide job offer via the I-485 Supplement J Form. Both you and the sponsor sign the document that the statements are true. Accordingly, when filing the Supplement J you must be intending to work for that employer when the green card is received and the employer must be intending to hire you. 

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On 1/26/2019 at 6:56 AM, sans_rules said:

Can you please elaborate more on below statement in your response regarding concurrent EB3 downgrade 140 + 485 rejection? 

continue to document the requirements of an I-140 petition”

When adjudicating an I-140 USCIS will review and confirm the beneficiary's education and experience documents meet the requirements of the position as listed on the labor certification, and the employer's ability to pay since the priority date of that filing.  

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