San Jose Immigration Law Firm

In the context of employment-based immigration, the time an alien has to wait before he or she can apply for a green card (adjustment of status in the U.S. or consular processing) differs greatly depending on the preference categories in which one’s approved I-140 is placed. For many, moving from one category to another may significantly shorten the wait time for an available immigrant visa number. This strategy is available to those who have an approved I-140 petition in the employment-based immigration category.

Historically, the progression of cutoff dates in EB-3 has always been slower than that in EB-2 due to high demand. This is particularly true for India EB-3 visas. India EB-3 has been moving slowly but steadily, whereas India EB-2 tends to fluctuate. Between October 2012 and December 2013, India EB-3 progressed from October 15, 2002 to September 22, 2003 and then retrogressed to September 1, 2003, while India EB-2 fluctuated between September 1, 2004 and June 15, 2008 and retrogressed to November 15, 2004 in December 2013. While India EB-2 fluctuates, overall it moves faster than India EB-3. The May 2014 visa bulletin shows the current cutoff date of November 15, 2004 for India EB-2, and October 1, 2003 for India EB-3. In November 2013, the demand for India EB-2 visa numbers spiked. Between November 10, 2013 and November 20, 2013, the National Visa Office received requests for approximately 150 India EB-2 visa numbers per day from USCIS, most of which were “upgrades” from Indian nationals in EB-3 who are now qualified for EB-2 (i.e. having an advanced degree or exceptional ability in sciences, arts, and business). Although the unprecedented high demand for India EB-2 may potentially slow down the EB-2 movement, there has been no evidence suggesting such a shift.

On the other hand, Chinese nationals with an approved I-140 petition in EB-2 may want to consider downgrading to EB-3. Since October 2012, China EB-3 priority dates have been moving at a faster rate than those of China EB-2. As a result, Chinese nationals in EB-3 become eligible to apply for green card substantially sooner than those in EB-2. The May 2014 visa bulletin shows April 15, 2009 for China EB-2, and October 1, 2012 for China EB-3. As a result, many Chinese nationals have been filing I-140 applications to “downgrade” from EB-2 to EB-3. High demand is expected to continue in the China EB-3 category. However, as the high demand may likely result in China EB-3 retrogression, Chinese nationals whose priority dates are current are highly encouraged to file the I-485 adjustment of status applications as soon as possible.

Priority dates under the first three EB categories are transferrable, and an alien in any one of these categories is entitled to retain the earliest priority date for subsequently submitted EB-1, 2, or 3 petitions, unless the prior petition is revoked due to fraud or misrepresentation. Therefore, an employer’s withdrawal of the previously approved I-140 petition will not invalidate the early priority date.

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Our office has processed numerous applications in regard to change the employment-based preference category in order to take advantage of the shorter wait time for an immigrant visa number. If you are interested in “upgrade” or “downgrade” your preference category, please schedule a Legal Consultation.