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?
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