The priority dates moved!! Now what??

Last Thursday USCIS published the October Visa bulletin and for the first time in years, there was significant forward movement for Indian applicants. This was exciting news and a much needed relief in this disaster of a year. My excitement did not last too long though; I now had so many questions and because this was an esoteric topic, it was hard to easily find answers online. I had not expected these dates to move for the next 50 years that when they suddenly did, I wasn’t very sure what that meant. I spent the next couple of days doing a lot of research. Sharing my findings here so others can benefit from it too!

In this post I only focus on employment based green cards and a lot of this is only relevant if your country has a backlog wrt priority dates.

If you want more details on the current immigration system better or understand why we have a long wait you can read my previous post here.

Here is some background and explanations for some frequently used terminologies.

• Priority date: When you file a petition I-140 for the first time and it is approved, you are assigned a date which is your priority date. This is your place in line based on your country of birth and category of filing (EB-1, EB-2 or EB-3)

There are two major steps in applying for a green card:

• I-140 : Immigrant petition for Alien Worker: An application filed to the USCIS which if approved will get you a priority date.
• I-485 : Adjustment of status (AOS): If your priority date is ‘current’ then you can file the adjustment of status and get your green card. Each month the State department publishes a Visa bulletin which indicates what dates are current (final action dates) for different countries/categories. e.g. For EB-1 India, if the date on the bulletin is 08 Feb 2018, then if your priority date is before 08 Feb 2018 you can file form I-485.

October and August visa bulletin

How are ‘dates for filing’ different from ‘final action dates’?

Final action dates as mentioned above indicate which dates are ‘current’ to file AOS for a country and visa category. Several years ago, ‘dates for filing’ were introduced. These dates are typically few months ahead of the final action dates and give insight into the upcoming demand for immigrant visas. Applicants whose dates are before the ‘dates for filing’ can file AOS and get Employment/Travel authorization while waiting for a visa number to be available. In effect this was a Step 1.5 in the above two process where you get some benefits before your priority date is current and get the green card.

In each bulletin, the USCIS specifies whether they will use ‘final action dates’ or ‘dates for filing’ for determining who is eligible to submit their AOS.

What are the benefits of getting the EAD/travel document?

The EAD/travel card puts you in Advance Parolee status. This means that you do not need a visa to enter the US and that you have a work authorization to work with any company. However if your I-485 is rejected for whatever reason, you will immediately lose your status and will need to leave the country. The USCIS is assuming that your petition will be approved and allowing you some flexibility.

Why is there a sudden movement in priority dates for India?

The priority dates for India in EB-2 and EB-3 were somewhere in 2009 till last month. Due to this many Indians were stuck between steps 1 and 2 where they have an approved I-140 but cannot file for Adjustment of Status. Even the dates for filing were around 2010.

Due to President Trump’s immigration proclamation in June 2020 (banning issuance of a number of different types of immigrant visas) a large number of visas (~110K) were unused in the Family based immigration category. According to legislation, any unused visas in the family category go to employment category and vice versa for the next fiscal year. So this year instead of the 140K immigrant visas (aka green cards) available for the employment category we have ~250K. Since for the rest of the world, the demand and supply is about the same (their priority dates are current) these extra visas will directly benefit the most retrogressed country in each type (for EB-2 and EB-3 that is India). So in the October Visa bulletin, the ‘dates for filing’ jumped for EB2 to 2011 and for EB3 to 2015. Also USCIS decided to use the ‘dates for filing’ instead of the ‘final action dates’ in this bulletin for determining who is eligible to file.

What does this movement mean for me?

• If you are on EB2 with priority date before 2011 you can now file AOS and get the benefits of Step 1.5
• If you are on EB3 with priority date before 2015 you can now file AOS and get the benefits of Step 1.5
• If you are on EB2 with priority date before 2015 you can ‘downgrade’ to EB3 and file AOS and get the benefits of Step 1.5

What is EB2 to EB3 downgrade?

Almost all PERM Labor Certifications which have been used while submitting an EB-2 petition (I-140) can be used to support an EB-3 petition by the same employer and for the same position. This is because by definition EB-3 has lesser requirement than EB-2. So, you could submit a new I-140 (Step 1) for EB3 using your old PERM and priority date and concurrently submit an AOS (Step 1.5) based on your eligibility using the ‘date for filing’.

Should I downgrade to EB3?

Obviously this depends on your particular situation. If your priority date is before early 2012, maybe it is better to wait because forward movement is expected in EB-2 in the coming bulletins. But in most other cases Yes! It seems to me that there is almost no risk to downgrading but definite positives.

• Downgrading to EB3 today will most likely not get you a green card immediately (final action date for EB-3 is still 2010). Also at any point, if the final action date for EB-3 is much more advanced compared to EB-2, more people will downgrade which will make the date retrogress. So whether you are in EB-2 or EB-3 you will likely get your green card at the same time.
• It will however allow you to file an AOS which in turn will get you a EAD and a travel document. While technically this means you do not need an H1-B going forward, practically I would recommend maintaining your H1 status till you get a green card in hand. Historically priority date and final action dates have been close together so people have not been stuck in Step 1.5 for long; but this abrupt 5 year advancement in filing dates have also never happened before; so expect this wait to be a fairly long one. Without a H1-B visa, it will be harder to get a visitor visa to a third country (if you want to travel) or even renew driver’s license etc.
• While the EAD/travel card does not mean you can stop dealing with H1 extensions due to the above mentioned reasons, in an emergency it is a good fallback e.g you need to travel outside the country but consulates are closed or you cannot continue to work for whatever reason.
• The biggest benefit of filing I-485 is the ability to port your I-485 to a new employer after 180 days of filing. This means that if you switch jobs you do not need to file PERM, wait for that and file a new I-140 again. This single reason alone to me is worth doing the downgrade.
• If you downgrade to EB-3 and file I-140 it does not cancel your existing EB-2 I-140. You still get to retain it and if needed in the future you can ‘upgrade’ your application too.

What if I switch to EB-3 and everyone else does too but now the EB-3 line is too long while EB-2 moves quickly?

Even if you are not able to upgrade, sufficient people will upgrade which will cause EB-2 to retrogress and EB-3 to advance to settle in some equilibrium.

How can I downgrade from EB-2 to EB-3?

Your lawyer will be the best person to answer this for you. At a high level, you would need to:

• File a new I-140 with your old PERM. If you do not have the original copy of your PERM certificate you cannot request for premium processing. Because you sent your original certificate the last time (your EB-2 I-140) you will not have it. However I have read online that if it is at the same servicing center where you filed your I-140 the last time, you should still be able to apply for premium processing. Not sure if that is accurate.
• Concurrently file your I-485 (along with the forms requesting EAD and Travel document).

So there are absolutely NO risks?

There are always risks. USCIS was recently at risk of furloughing 70% of its staff. They seem to have prevented this but if that happens and they are not able to process sufficient applications the leftover number of green cards will revert back to family from employment category at the end of the next fiscal year. So a lot of the forward movement might only happen on paper. Maybe, Congress will pass an immigration reform (LOL) that would prevent future upgrades; causing you a longer wait than if you had been on EB-2. But I think these risks are not specific to being in EB-3.

How soon should I do the downgrade?

ASAP. In the November visa bulletin, USCIS might decide to use the final action dates instead of dates for filing. Or the dates for filing could retrogress!

What is the expected trend in movements?

In the October Visa bulletin, USCIS predicts rapid forward movement for both EB-2 and EB-3 for the final action dates. Since the dates for filing for EB-3 are ~4 years ahead of EB-2 there is a theory that EB-2 will advance and EB-3 will retrogress (if sufficient EB-2 applicants downgrade to EB-3) and will settle into an equilibrium point between 2012 and 2013 by the end of the fiscal year.

What if I switched jobs recently and my PERM is pending?

Unless you have an approved PERM with your current employer you cannot take advantage of this movement. I do want to stress that regardless of whether you are in the group that gets to file or not this is a great thing for everyone. Any positive movement is just good for everyone in the queue. And most likely people will get their green cards in the order of their priority dates. So do not stress about it!!

Disclaimer: I am not a lawyer and this is not a legal opinion. My recommendations are based on the research that I have done in the past few days. What I don’t know, I don’t know! If you think I missed out on something leave a comment and I will be happy to update the story.