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Overcoming The Employment Visa Backlog

If you’ve been watching the Filing or Final Action Dates for your U.S. employment-based visa, hoping for Green Card approval, you may notice that everything seems to be moving very slowly. The EB-2 category is seeing long processing delays, but does this mean you’re in a permanent state of limbo?

There may be another option for people in the U.S. on an employment visa. Our friends from Cohen & Cohen explain how there may be a more effective way to expedite your employment visa application.

Should I Downgrade My Visa?

If you’ve submitted an EB-2 visa application to live and work in the U.S., there may be a more effective way to overcome the current EB-2 backlog, especially for workers coming from India and China. You may be able to downgrade your visa from an EB-2 to an EB-3. This category’s approval rate is moving faster than other employment visas.

What is the EB-3 Downgrade Process?

Downgrading a visa is essentially a strategic move from one employment-based category to take advantage of the faster movement in a lower preference category. Currently, the third preference category, EB-3, is moving quickly. People from countries with a high demand for employment visas may particularly benefit from changing.

The U.S. State Department limits the number of visas for EB-2 applicants to address the high demand and backlog. Downgrading from the EB-2 category to the EB-3 category may help you beat the backlog by speeding up your Priority Date assignment.

The process starts with filing a second I-140 petition with the U.S. Citizenship and Immigration Services (USCIS) to qualify for the EB-3 visa. Once your employer can downgrade to the EB-2 visa application, you can downgrade to the EB-3 visa, and secure a current EB-3 Priority Date. You should be able to re-use your PERM certificate from your EB-2 application without having to submit another PERM application.

What Can I Expect From the Downgrade Process?

There are five steps to downgrade your EB-2 visa to an EB-3. Many people benefit from the help of a dedicated lawyer familiar with U.S. immigration laws and the visa application process. The laws are subject to change frequently; an immigration attorney typically keeps abreast of changes that could affect your visa application.

Follow these steps:

●       Confirm your eligibility for an EB-3 downgrade. If you filed for a visa that did not require the PERM labor certification or filed one as a national Interest Waiver, you may not qualify, as the process differs.

●       Don’t revoke your initial EB-2 petition. The original I-140 petition must be processed and approved so you can use your pERM certificate with your EB-3 application.

●       File the new I-140 petition in parallel with the original I-140 petition. Do not cancel the initial one.

●       Clarify that your second I-140 application is subsequent to the initial application, not in place of it. This way, you will still receive the original visa you applied for. You can state this on the cover letter and indicate that this filing does not replace the original EB-2 petition.

●       Include a copy of your PERM certification and previously approved I-140 form.

If you qualify for an EB-3 visa, you can significantly speed up the time it takes to have a visa approved. However, this can be a little tricky. An immigration lawyer can guide you through the process so you don’t inadvertently jeopardize your visa application.


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