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DSel

Query on interfiling EB-3 to EB-2

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I have an approved EB-2 I-140 with PD May 2013. I downgraded my visa category to EB-3 in 2020 and filed for AOS with PD May 2013. I have an EAD/AP and pending AOS from EB-3. As the dates for EB-2 are moving and EB-3 retrogressed, I want to reach out to my attorney to see if interfiling from EB-3 to EB-2 category can be done as my PD will become current in April 2022. My questions are

1. Is the old approved EB-2 I-40 sufficient for interfiling to request change in underlying visa category from EB-3 to EB-2?  OR

2. Do I need to file a new I-40 to reinstate my EB-2 status from EB-3 status, and only then I can request interfiling?

Please share your knowledge on this item.

My only concern here is if I new I-140 needs to be filed before making an interfile request, then there is a possibility of EB-2 retrogressing by the time (approx. 6 months) the new I-140 is approved to change the underlying status. 

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Your old EB-2 I-140 is sufficient to file I-485, provided you are with the same employer. 

Instead of interfiling, you could do a refiling which mean you would have both EB-2 and EB-3 applications with USCIS. At the time of processing, USCIS would ask you to pick either one of application before starting to work on your case. 
 

Refiling imply that you would have to restart the whole I-485 application process again, and submit a new fee/medical forms. 

Edited by Engineer80

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Thanks for your inputs. 

I'm with the same employer and I was also of the same opinion that the old EB-2 should be sufficient. However, I reached out to my attorney and my attorney says otherwise. 

Just for the benefit of everyone, quoting my attorney, " Our first step would be to submit an I-140 filing to reinstate the EB-2 I-40, since the EB-3 I-140 is currently the governing I-140 in your AOS case. Once the EB-2 I-140 was revived/reinstated, we could submit a formal interfile request". As they are the subject matter experts, I'm just following their advice.

Refiling was never discussed. Will reach out to check if that can be done.

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