Chasing the Visa Bulletin: Interfiling to Upgrade and Downgrade

Posted in employment based, Green card, my view at 1:01 am by Lalita Haran

Employment based immigration applicants in the EB-2 and EB-3 employment-based preference categories are advised by the USCIS to transfer (upgrade) the underlying basis of their adjustment of status application to EB-1 and EB-2 applications. This is because of the availability of increased annual quota of immigrant visas in the categories (eb-1 and eb-2) for the current fiscal year (Oct. 1, 2021 through Sep. 30, 2022).

Employment-based first preference category (eb1) is for “priority workers” comprising of employees with extraordinary ability, outstanding professors and researchers, and multinational executives. The employment-based second preference category (eb2) is for foreign nationals with exceptional ability or those with an advanced degree; meaning those with masters and doctorate qualifications and includes those eligible for national interest waiver including physicians. The Employment-based third preference category (eb3) is for professionals, skilled workers, and other workers.

Foreign nationals seeking to become lawful permanent residents based on their employment should register for permanent residence (adjustment of status application in form I-485) following approval of employment-based immigrant visa petition (Form I-140) in one of the employment-based preferences categories, first through fifth. Application to register permanent residence is filed based on priority dates listed on the visa bulletin, a department of state monthly publication, which shows the priority date i.e. date of filing of the I-140 under each employment-based preference category that the agency is currently processing and the dates when a foreign national can file their applications. This article refers to the first, second, and third employment-based preference category workers only.

Applicants for adjustment of status in the underlying employment-based first, second or third preference category may hop between these preference categories eb1/eb2/eb3. When prolonged wait times in any of these categories, applicants in that category seek to hop aka transfer to another preference category with shorter wait times.

Transferring or changing the basis of the underlying preference category to a different I-140 petition, is of special interest these days because the eb3 preference category has been backlogged for years and applicants had been waiting for more than a decade before they can be approved for lawful permanent residence and obtain green card. Because the immigrant visa numbers for each preference category is limited based on per-country limit, the eb3 preference category for certain countries especially for India and China is severely, and eb2 just a little less, backlogged with many years of waiting before the foreign national from the backlogged country can be granted permanent residence.

Upgrade to the higher preference category is frequently desired to shorten wait times. If eligible, the foreign national in eb3 preference category can change the basis of his or her adjustment of status application to that of eb-2 and a foreign national in eb2 preference category can change the basis of the adjustment application to that of eb-1. Depending upon the movement of priority dates in the visa bulletin the adjustment applicants generally prefer a substitution to the more desired preference category. Some foreign nationals do resort to an additional filing instead of substitution, and concurrently, when permissible under the visa bulletin.

It should be remembered that in October 2020 visa bulletin in the eb-3 category made a sudden jump by a few more years than the eb2 category. So, many foreign nationals with eb-2 as the basis of their I-140 petition with a later priority date preferred to choose eb-3 as the underlying preference category in the hope of avoiding years of wait to obtain the green card. However, the visa bulletin, for eb3 preference category, retrogressed in a couple of months, and foreign nationals who had downgraded from eb2 to eb3 category were left with much disappointment. Recent visa bulletin showed movement in eb-2 category and hence comes the desire to reverse the previous downgrade and return to eb-2 category as the basis of the underlying petition.

In September 2021 it became widely known that nearly 100,000 immigrant visas in the employment-based categories went unutilized, meaning wasted because the agency was unable to process the applications fast enough before the end of the fiscal year, even as too many qualifying applicants were anxiously waiting for their turn and some of them had aging children with drastic family separation consequences. There was no legal provision to carry forward these visa numbers to the next year for issuance.

Any unused immigrant visa numbers from the family-based category in the previous fiscal year are added to the first employment-based preference category eb-1 of the next fiscal year. Similarly, any unused immigrant visas in one employment-based preference category are made available to another employment-based preference category for issuance in the next fiscal year. So, the unused immigrant visa numbers in the fifth employment-based preference category (eb-5 – investors) are made available to the first (eb-1) employment-based preference category, and unused immigrant visa numbers in the eb-1 category visa are added back to the second (eb-2) employment-based preference category. Because of these reasons the current fiscal year immigrant visa numbers available for the first and second employment-based preference categories are very high and according to the USCIS, are twice more than the usual numbers of immigrant visas in the category.

Likewise, unused eb-2 visa numbers can be added back to eb-3 preference category but the agency predicts that it seems highly unlikely that eb-2 visa numbers would benefit the eb-3 category because there are significant numbers of immigrant visa applications pending in the eb-2 category. However, the agency encourages applicants to move from the eb-3 to eb-2 category. It must be noted that the foreign nationals must meet the eligibility criteria for the desired category to interfile and would still be subject to the visa bulletin’s priority date requirements before hoping to take the benefit of a higher number of immigrant visas available for the first and second employment-based preference categories (eb-1 and eb-2). The agency note appears to be based on its estimate of available immigrant visa numbers and not a rule change of any kind which could provide an added advantage to the eb-2 category aspirants.

Many foreign nationals choose substitution instead of additional filing when downgrading or upgrading to the more desirable preference category. These future immigrants may have to reverse the course by following the updated visa bulletin and upgrade or downgrade to the original basis.

Foreign nationals should consult with their attorneys on the possibility of interfiling or an additional filing to make the best of their situations. In addition to the formidable cost of filing and employer cooperation, some other factors to consider are if there are children who may age out and go out of status, availability of other independent immigrant or nonimmigrant visa options, and the cost of other lost opportunities.

Given the complexities of employment-based immigration compounded by the visa bulletin guesses the fact remains that the foreign nationals adjusting status in the employment-based preference categories will find themselves chasing the Visa Bulletin in the interfiling game of whether to upgrade or downgrade and then again regrade their adjustment of status application.

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