There’s hope for backlogged immigrants once again, as downgrading now proves to be a strategy to fight EB green card backlogs.
The Problem Of Backlogging
Over the years, the number of employment-based green card applications have skyrocketed beyond control. This is because Congress updated the cap for immigration to allow more immigrants to apply for green cards. This was done 30 years ago, and since then, green card applications have increased significantly.
While this congressional action has its merit, its demerit is playing out dramatically in U.S. immigration today. With massive movement in EB-3 numbers in the October 2020 visa bulletin, millions of new visa numbers became available.
For a fact, USCIS only issues 140,000 employment-based green cards every year. All other applicants with approved Form I-140 get placed in backlogs(often called a waitlist). Under normal circumstances, this wouldn’t be a problem. But right now, it is. Why?
The waitlist does not include immigrants waiting to get their form I-140 approved. The backlogs only comprise applicants with approved I-140, waiting to get their Form I-485 approved.
Between 2018 and early 2020, over 215,000 Form I-140s entered the employment-based green card backlogs. Hence, the backlogs grew from about 800,000 to over 1,000,000 applicants waiting to receive an employment-based green card.
The backlog is huge now, but it’ll only keep accumulating, leaving newer applicants waiting several years to get their green cards. It’s an “early bird gets the worm” situation. And with the situation as it is, no new applicant is the “early bird”.
Be that as it may, we are here to help, not discourage you. If you’re not one of the “early birds”, we will present you with a strategy to help. And that strategy is “Downgrading”.
The Prospects Of Downgrading
Downgrading is the act of filing a new Form I-140 with USCIS. Filing a new Form I-140 here does not mean that you’re withdrawing your prior I-140. Rather, you’re simply filing the same petition, but in a different category. In simple terms, if you file an EB-2, you can still file the petition again for an EB-3. This is downgrading.
How Will Downgrading Help?
The provisions of 8 CFR 204.5(e) allows applicants to maintain the priority date of a formerly filed I-140 when they file a new petition. Note: USCIS only allows this when you file for a different visa category. (Think of priority date as your spot in line.)
The employment-based visa application has several categories, each with its own unique qualifications. You may file for an EB-2 and not get lucky. You may also file an EB-3 and find it favorable. But how do you know which will benefit you? Well, you can’t (by yourself). That’s where downgrading and 8 CFR 204.5(e) come in. You can file EB-2 first and later downgrade to an EB-3. In the same vein, you can file EB-1 first and later downgrade to an EB-2. When you do this, you will be able to apply the earliest approval date