Q1: Can an EB2 I-140 approval petition be downgraded to an EB3 so they can use the new priority date?
Since the EB3 filing dates are significantly earlier than the EB2 filing dates, a beneficiary of an approved EB2 petition and I-140 may want to downgrade to an EB3.
If the beneficiary qualified under the EB2, they should be able to qualify as an EB3, and should still be able to rely on the EB2 labor certification when filing the I-140 under the EB3. See video for more details.
Q2: Can we use the previous prevailing wage? Is it even an issue?
Yes, you can submit the EB2 perm labor certification for the EB3. The approved labor certification demonstrates that the petitioner is ready to sponsor the beneficiary with previous prevailing wages. This must be paid at or above the prevailing wage issued by the DoL.
Q3: Is there an impact on the job description?
When downgrading, there should not be an impact as the EB2 category requires an advanced degree or five years' experience, where the EB3 category requires less than five years' experience or only a bachelor's degree. See video for important extra details.
Q4: What happens if the adjustment occurs and the category fills up again and retrogrades? Does this stop the processing of the I-485? Does it continue to process the I-135 and I-765?
If this happens, the I-135 and I-765 should go forward, which means the beneficiary can still be issued a work authorization card (EAD) and a travel document. That means you can continue to work outside of the constraints of your existing H-1B or other non-immigrant visa.
Q5: What issues are there for the original company who filed the I-140 to say they still have a job available or an applicant even if the applicant moved on?
In case the beneficiary has moved on to a new employer to file their I-485 by downgrading to an EB3, the previous employer can withdraw the I-140 petition after 180 days. This is a great advantage for the employee.
Please watch the video to get all the additional details on any of these questions.