EB2 to EB3 Downgrade - "NEW" vs "AMEND"

[mdj1]

Regarding the downgrading of the EB-2 cases to EB-3, there are two approaches as follows:

(1)Amend the existing I-140 to downgrade it to EB-3. This would effectively replace the approved I-140 to an EB-3 I-140 and the EB-2 I-140 would no longer be useable.

(2)File a new I-140 in the EB-3 category. This would preserve the EB-2 I-140 and the beneficiary would have both an EB-2 and EB-3 I-140. This is the preferred method in case EB-3 would retrogress and EB-2 advances ahead of EB-3.

Per my lawyer - since few days other lawyers have been reporting that USCIS is denying petitions that are filing in the “new” category even though many including my lawyers office have successfully filed as new petitions. Given the uncertainty, our lawyers advice is that we file the petition as an amended petition to EB-3 as we have the support of the Neufeld memo. If, in the future, EB-2 advances ahead, then an amended petition can be filed for EB-2. It would involve additional legal and filing fees but this seems the most prudent approach given the apparent position of USCIS at the moment.

Anyone heard of similar argument or recommendation recently.? any thoughts? Please share

[Tjgarla]

They are not denying the petitions. They are just sending  them back. This is a mailroom mistake. I am sure this will be  fixed soon and we do just NEW applications rather than amending them.

[Kingpin]

I am on the same boat and super confused. Unfortunately, our law office left the choice to us and asking us to pick between Amendment Vs New. Wish/hope someone sheds some light on all the Pros and Cons and help us make the right decision  

[gimmeperm]

I'm in the same dilemma and my lawyer says he filed many petitions like these as NEW and provided a letter explaining we are using teh perm approved fro EB2.

[gimmeperm]

On 10/10/2020 at 5:55 AM, mdj1 said:

Regarding the downgrading of the EB-2 cases to EB-3, there are two approaches as follows:

(1)Amend the existing I-140 to downgrade it to EB-3. This would effectively replace the approved I-140 to an EB-3 I-140 and the EB-2 I-140 would no longer be useable.

(2)File a new I-140 in the EB-3 category. This would preserve the EB-2 I-140 and the beneficiary would have both an EB-2 and EB-3 I-140. This is the preferred method in case EB-3 would retrogress and EB-2 advances ahead of EB-3.

Per my lawyer - since few days other lawyers have been reporting that USCIS is denying petitions that are filing in the “new” category even though many including my lawyers office have successfully filed as new petitions. Given the uncertainty, our lawyers advice is that we file the petition as an amended petition to EB-3 as we have the support of the Neufeld memo. If, in the future, EB-2 advances ahead, then an amended petition can be filed for EB-2. It would involve additional legal and filing fees but this seems the most prudent approach given the apparent position of USCIS at the moment.

Anyone heard of similar argument or recommendation recently.? any thoughts? Please share

Can i know your law firm name ? 

[gimmeperm]

On 10/13/2020 at 11:47 AM, Tjgarla said:

They are not denying the petitions. They are just sending  them back. This is a mailroom mistake. I am sure this will be  fixed soon and we do just NEW applications rather than amending them.

How do you know this that they are sending the applications back ?

[Tjgarla]

On 10/16/2020 at 3:39 PM, gimmeperm said:

How do you know this that they are sending the applications back ?

looks like it was a fake news. Nothing is happening with the application. It is suggested by every attorney to file as new.