 If you are in one of the second preference employment-based green card categories where you still have a long wait, you might be wondering if you can downgrade from your approved EB-2 to an EB-3. That prospect might be a possibility, so long as your EB-2 is not based on a national interest waiver.
Many green card beneficiaries think that if they are approved for a higher-level employment based category, they can automatically downgrade if that works better for them regarding their priority date and its standing in the visa bulletin. However, it is a bit more complicated than that. What is a green card downgrade? Employment-based green cards fall into several categories. For example, the EB-1A extraordinary ability green card is a first preference immigrant visa. The EB-2, as well as the EB-2 NIW national interest waiver, fall into second preference. An EB-3 is a third preference green card that can have an later current priority date on the visa bulletin. When there is a later date on the visa bulletin for the EB-3 than the EB-2, some foreign national workers will be able to downgrade from second preference to third preference. But this strategy will not work for the EB-2 NIW green card. Why you cannot downgrade from an EB-2 NIW to an EB-3 When you request an EB-2 green card with a national interest waiver, you are asking the United States Citizenship and Immigration Service (USCIS) to waive the job offer and labor certification requirement (PERM). If you succeed and are offered an EB-2 NIW green card, after what can be a lengthy processing time, then you would not likely have the job offer and labor certification that is required for the EB-3 permanent residency. Therefore, persons from countries that do not have a current date on the visa bulletin for the EB-2 NIW sometimes prefer to try for an EB-1A extraordinary ability green card instead. Of course, this first preference immigrant visa has more stringent requirements. Discuss your case with an employment-based green card lawyer Some immigration attorneys focus their work on employment-based green cards and are willing to consult with you about your options. If you are considering an EB-1, EB-2, or other petition for lawful permanent residency, why not get in touch with a green card lawyer near you? Photo by Robin Schreiner from Pexels  As an immigration attorney who is focused on the EB2 national interest waiver green card, I am often asked about how long it will take to get a case processed and approved by USCIS. Currently, if you ask me that question, I will generally say about 18 months. Although the EB2 NIW was once processed within 5 to 9 months, there is currently a huge backlog.
If you are hoping to pay for premium processing for your national interest waiver, unfortunately, that service is not currently available. No one is exactly sure when USCIS will start offering EB2 NIW beneficiaries more rapid results through premium processing. Even immigration lawyers in your area are not certain about what is happening with premium processing for the EB2 NIW. EB2 NIW has been authorized for premium processing In late September 2020, while the pandemic was in full force, Donald Trump was still the President of the United States, and the backlog was becoming a behemoth, changes were made to premium processing policy. Continuing Appropriations Act, 2021 On September 30, 2020, former President Trump signed the Continuing Appropriations Act, 2021. As part of that Act, allowances were made to expand the premium processing program. One of the most exciting provisions of the Act for immigration lawyers and their employment-based green card clients was the inclusion of the EB-2 NIW as a Form I-140 category that was eligible for premium processing. But then nothing happened. Changes to premium processing filing fees Effective October 19, 2020, many green card categories that were eligible for premium processing experienced a fee increase from $1,440 to $2,500, including the EB-1A extraordinary ability green card. When USCIS implements premium processing for the EB-2 national interest waiver petitions, the cost will be $2,500, as well. This, of course, is in addition to the $700 filing fee for Form I-140. Authorization for premium processing Even when USCIS finally institutes premium processing for the EB2 NIW, the policy is not planned to be the same as for the EB1A extraordinary ability green card. Although the Form I-907 fee will also be $2,500, the national interest waiver is set to have a promised processing time of 45 days. This is a much longer time compared to the 15 calendar days afforded by EB-1A premium processing. But it is certainly better than the current EB2 NIW processing time of 18 months or more. Your guess is as good as mine But who knows when the EB2 NIW premium processing program will be implemented by USCIS. Also, many are wondering if USCIS will allow for previously filed petitions to be upgraded. Can these EB-2 NIW cases be removed from that large pile that many of us imagine that they are festering in and get processed within 45 days? If you have filed a national interest waiver green card petition, or you plan to, you may want to consult with an immigration attorney near you to find out the latest on premium processing. Photo by Ksenia Chernaya from Pexels  If you believe that you have to have a Ph.D. or at least a master’s degree to be eligible for an EB-2 second preference green card with a national interest waiver (NIW), you may be pleasantly surprised. Not everyone whose endeavors have substantial merit and national importance to the USA have that educational background. In reality, the United States Citizenship and Immigration Service (USCIS) provides the following standard: “You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability.” Advanced Degree or Its Equivalent The term “equivalent” may seem ambiguous to some noncitizens who are pursuing an EB-2 NIW. In actuality, the way that USCIS views it is fairly concrete. To be considered by a USCIS officer as a foreign national with the significance of an advanced degree, one must have at least a bachelor’s degree in the field of application and at least five years of progressive experience in their area of expertise. What does exceptional ability mean? Noncitizen professionals who do not have at least a bachelor’s degree in their area of career focus can still qualify for an EB-2 NIW. This is because there is an alternative way to achieve second preference status, exceptional ability. USCIS provides several factors that may persuade a DHS adjudicator that an EB-2 NIW beneficiary has exceptional ability. The list below is not exhaustive.
National Interest Waiver Someone who has a job offer and labor certification may be able to be approved for a second preference immigrant visa based on their advanced degree or exceptional ability. Those who wish to have the job offer and PERM waived can self-petition for an EB-2 NIW. One thing to keep in mind; however, if that the NIW processing time can be quite lengthy, as there is no premium processing being offered right now. Since one of the three necessary elements for a national interest waiver is that the noncitizen is “well positioned to advance the proposed endeavor,” an EB-2 NIW self petitioner might consider using some of the exceptional ability criteria to demonstrate it. In this sense, they can meet both the thresholds of having exceptional ability and being well positioned. Applying for an EB-2 NIW based on Exceptional Ability If you do not have an advanced degree or its equivalent, or if you are not working in the field related to your education, you may still qualify for an EB-2 NIW. You have the option to self-petition for a national interest waiver, and you now have the information needed to gather your evidence. Even if you are planning to petition for an EB-2 NIW yourself, it can be helpful to consult with an attorney before you begin. Gallagher Domanski Professional Law Corporation offers a free CV evaluation and has a dedicated Facebook Group, “EB-2 Self Petitioners.” Photo by Monstera from Pexels |
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