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Abhi Biswal

Downgrade to EB3 from EB2 with AOS Filling

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Hello Everyone

As you know , after Oct Visa Bulletin lot of EB2 I140 holder who are current in EB3 dates. I am on that boat. I am going for downgrade to EB3. But there is a confusion has come when you file I140 in EB3 along with AOS application, if the I140 gets filed as NEW Petition USCIS has some possibility of rejecting the application. My attorney company mentioning there is some mail room clerk who will return the application when they see you have previously I140 in EB2 and you have selected NEW petition. So they expect you to file as amended petition. But in amended petition , we will loosed EB2 I140. That will make us to file again EB2 in future if at all EB2 moves faster. With amended petition we can not have both I140 valid. But with NEW, we can carry both I140. Could you please suggest what other attorneys are recommending?

As per the AILA doc published last week, it says you file as NEW . Then why some attorneys are making this confusing. This is very stressful. To get EB3 I140 and get EAD, is there any risk of loosing EB2 I140? If we loose now, can we file again EB2 I140 later stage if EB2 I140 goes faster? Your help and expertise would be highly appreciated.

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Note that:

Once a PERM application is certified (approved) by DOL the employer must file an I-140 Immigrant Worker Petition with the USCIS within six months of the approval date of the PERM application.

So in case if you need to file EB2 I140 then you would need to start from fresh perm.

 

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On 10/20/2020 at 9:34 AM, Shurap1 said:

Note that:

Once a PERM application is certified (approved) by DOL the employer must file an I-140 Immigrant Worker Petition with the USCIS within six months of the approval date of the PERM application.

So in case if you need to file EB2 I140 then you would need to start from fresh perm.

 

The whole population understands that to downgrade from EB2 to Eb3 all you need is to file just i-140 and you don't need a new PERM if its from same employer. You are  talking something else. What you are talking is correct if it is from new employer.

Someone else with confirmed knowledge, may please correct me if I'm wrong. 

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On 10/24/2020 at 10:44 AM, rpbrowse said:

The whole population understands that to downgrade from EB2 to Eb3 all you need is to file just i-140 and you don't need a new PERM if its from same employer. You are  talking something else. What you are talking is correct if it is from new employer.

Someone else with confirmed knowledge, may please correct me if I'm wrong. 

This was not about EB2 to EB3.... Question was "To get EB3 I140 and get EAD, is there any risk of loosing EB2 I140? If we loose now, can we file again EB2 I140 later stage if EB2 I140 goes faster? " So can you switch back to EB2 (or move up) after you moved down to EB3 by just filing new I140 and answer is no to that and would require new perm.

Edited by Shurap1
typo

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