vASANTH VAIDYANATHAN ESQ.

Should the 140 be downgraded to EB3, so as to file the I-485?

by Vasanth Vaidyanathan, Esq., September 26, 2020

This seems to be the question of the hour, from the time USCIS announced the 485 filing chart for employment based EB3 and EB2. EB3 for India has over taken EB2 for India by almost 4 years. Now Indian born EB2 140 beneficiaries want to get into the EB3 lane so they will get a chance to file the I-485, if they downgrade their 140 petition from EB2 to EB3.

I will try to break the complexities involved in downgrade to the best extent possible.

Let us first start with what is the advantage of being able to file a I-485 application:

·        You don’t have to worry about maintaining your H1b status (although it is advisable to maintain H-1b status as a back up till you get GC, if possible)
·        You can port your GC process to another employer six months after filing of the I-485. The new employer has to just file a I-485 J supplement and the GC gets transferred. (Of course, better to wait for the 140 to be approved before you take this step).
·        You and your family will be eligible for EAD. Your spouse does not have to depend on H-4 EAD with all the uncertainty going around. You children will also qualify for EAD if they have to work in campus or school which is not possible through H4 EAD.
·        You will qualify for filing Advance Parole (AP) which means you can travel in and out of USA with the AP document (which is a combo card with EAD when you apply together) without the need to go for H1b or H4 visa stamping.
·        Very helpful if you have any children that are going to age out (which means they will be turning 21) and cannot file for 485 along with you once they turn 21 years. If you have children who will be turning 21 in few years then I will say go for this downgrade provided your 140 has a good chance of approval based on ability to pay of employer and no issue with the prior 140 that was approved. But make sure that the children after they turn 21 also plan to have an alternate status since USCIS is taking the stand that in order for the age to be frozen at the time of filing only they will consider final action chart and not the filing chart. But this USCIS policy could potentially change and so better to file for someone going to reach 21 rather than wait since they will miss an opportunity to file their 485 once they reach 21.
·        Security for your family in terms of continued stay in USA, God forbid if something happens to you. We have seen very often when something untoward happens to I-140 beneficiary, the family has to depart USA since they are in dependent status. If the principal applicant dies for any reason and there is a pending 485 application then his/her surviving family may still get permanent residency.  (https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-9)

Ok, I don’t blame you if you have decided, reading the above, that you want to take advantage of the visa bulletin and downgrade the I-140 to EB3 and file your I-485 along with I-140.

Now let us see what could possibly go wrong if you downgrade:

Your downgraded 140 petition could be denied. Not for the simple reason that you downgraded from EB2 (with higher requirement) to EB3 (with lower requirements). It could be that there is an ability to pay issue which requires that the employer has been paying you the salary stated in the PERM application from the time PERM was filed to the time the new I-140 is filed OR the employer has sufficient net income or net assets if there is any shortfall in the offered salary in PERM application and your actual salary. Maybe you and your employer who filed the I-140 met this criterion first time around but now probably things have changed (like your salary came down OR the employer’s finances were not that good in recent years). Ability to pay are tricky issues sometimes when the employer has filed many I-140 petitions since the time your 140 was approved. If the officer gets to that issue he/she will ask for ability to pay for each and every employee for whom the 140 petition was filed. I have done this exercise where you submit a long excel sheet reports after scrubbing lot of data and prove how the petitioner has the ability to pay all the employees for whom the 140 petitions were filed. If you have been paid the salary listed in the PERM application since your priority date then you don't have to worry about the ability to pay issue.

Another reason could be the officer who dealt with your first 140 petition was lenient and did not bother to look at every detail of your experience letters but now comes back saying the letters are not detailed or if it is detailed says they don’t look like progressive experience (especially if the requirement was Bachelors and five years). Again, there is a remote chance, this thing about qualification could be looked into but something to remember especially if the documentation was not decent enough the first time around.

In the worst-case scenario, if the I-140 gets denied the 485 applications for you and your family that was filed with the I-140 will also be denied. So, there will be a loss of around $ 5000 to $ 7000 (140, 485, EAD and AP application costs depending on the legal fees). Add to this the cost of application cost for your family which will be around $ 3000 to $ 5000 for each member depending on the legal fees. So, you are looking at around a loss of $ 8000 to $ 12000 for a principal applicant and spouse, not even including any children.  

Apart from the above monetary loss do you have to worry about anything else? No. Your 140 that was approved will continue to be valid unless the officer sees some issue of fraud with your documentation and tries to look into your 140 petition that was approved. Again, chances are remote for this. So, I will say apart from the monetary loss, I  most likely, don’t see any other issues when you downgrade and your 140 does not get approved.

Now the downgrade has been approved and your 485 is pending. What does it mean?

Now that your 140 has been downgraded to EB3 and the 485 is pending it means that you will have to wait for the EB3 dates to be current to get your Green Card. You are not alone and thousands of EB2 beneficiaries would have moved along with you to EB3 lane. You would have seen this in freeways. You are going in the Express Lane and all of a sudden traffic comes to halt and then the slow lanes are moving smoothly and you switch to the slow lane and after some time you find the express lanes are again moving fast. If you want to switch again back to the EB2 lane then you will have to again file another 140 petition under EB2 category because once your 140 was downgraded to EB3 then to get back to EB2 you will have to file another 140 petition. Again there are some legal experts who might argue that you can have two 140s active but we have seen USCIS treating such downgrades as amendment. Also if you go back to EB2 by filing another I-140 then you will have to do inter-filing which means you have to request USCIS to link your 485 to the EB2 140 petition, which can consume some time and legal fees.

Remember that in future EB3 can slow down and EB2 can overtake EB3. So one who does not downgrade can still get the GC earlier than a EB3 candidate because getting a GC depends on final action chart published by USCIS/DOS and not the filing chart. Even the October visa bulletin says the EB2 date is likely to move further ahead. No guarantees though. If this EB3 October boat sails off then you can wait for the EB2 boat which might reach the destination sooner. But what if that boat never arrives in the near future and you are left to brood!!! 

Note that you cannot file I-140 downgrade under premium process unless it is being filed with same service center. Again, no guarantees but the service center would put a halt on the process till they could find your original labor.

Finally, I would close by saying that go for downgrade if you want to reap the benefits of 485 (which are many) and your employer supports it and you don’t see any issue with “ability to pay”.

Vasanth Vaidyanathan, Esq.

Cell: (732) 718 4272