United States: October 2021 Visa Bulletin: My Employer Filed An EB-3 Downgrade For Me And I Filed A Concurrent AOS, But Now My Priority Date Is "current" In EB-2 – What Do I Do?

An HR contact for one of our corporate clients passed along an employee's question after seeing the October 2021 visa bulletin: “Based on the October 2021 visa bulletin and the dates for EB-2 for India applications, my priority date is now current in EB-2.  We have already applied for Adjustment of Status (AOS) concurrently with an EB-3 I-140 downgrade, but my I-485 Application and the downgrade I-140 are both still pending.  The October visa bulletin would make me current under my approved EB-2 I-140 for initial filing as my priority date is earlier than July 8, 2021.  Should we now file under EB-2 to make things go faster?”

“My priority date is current!”  According to which chart?

With the “Priority Date” system, priority dates come from the date the sponsoring employer files the ETA 9089 with the U.S. Department of Labor (DOL) or EB1 I-140 with the U.S. Citizenship and Immigration Services (USCIS). In family-based cases, it likely comes from the date that the sponsoring family member filed the Form I-130 with USCIS.

The Priority Dates are issued each month by the U.S. Department of State (DOS) in a publication called the “Visa Bulletin.”  This contains two charts: one showing which priority dates are “current” for “Final Action” (i.e., approval or denial), and one indicating which dates are “current” for filing an application.  When an applicant's priority date is “current” on the “Final Action Chart,” this legally means that a visa has become available.

So, if a priority date is on or before the listed date for an applicant's country of birth and preference category on the “dates for filing” chart, she or he is allowed to file an immigrant visa application with DOS. 

If the priority date is on or before the listed date for the applicant's country of birth and preference category on the “Final Action Dates” chart, she or he is allowed to file an immigrant visa application with DOS. If the applicant has already done so, the case is now eligible for “Final Action” and can be approved or denied upon adjudication. 

With applicants wishing to file for Adjustment of Status (Form I-485), USCIS makes its own determination each month regarding which chart it will honor for which applicants.  For October 2021, USCIS is allowing employment-based applicants to file Form I-485 if their date is “current” on the “dates for filing chart”. Those applicants who have priority dates that are not yet current on the “Final Action Dates” chart, but that are current on the “Dates for Filing” chart, can file Form I-485 although it will not be eligible for adjudication until their date becomes current for “final action.”  This could be a delay of months, or even years.

For applicants with children nearing the age of 21, while it is a common misconception that filing Form I-485 for your child before they turn 21 will automatically protect them from no longer being eligible for Lawful Permanent Residence status as a dependent, this question hinges on which chart on which the applicant's priority date was current under when his or her Form I-485 was filed.  Under the Child Status Protection Act (CSPA), a child may be protected from “aging out” of eligibility to file as a dependent of their parents. When it comes to being protected by filing Form I-485, however, they would only be protected if Form I-485 was filed while the parent's priority date was current according to the final action dates chart, or if the date has been current according to the final action dates chart since filing.¹

“I have a pending I-485 based on an EB-3 I-140 downgrade but now my priority date is current in EB-2 – should I file under EB-2?”

What should an applicant do if she or he has a pending Form I-485 based on an EB-3 I-140 downgrade but now also a current priority date based on their earlier approved EB-2 I-140?  That depends on which chart that the applicant is “current.”

For the October 2021 Visa Bulletin, we see for India specifically²:

USCIS has indicated that for October it is allowing applicants to file their adjustment of status application based on the visa bulletin's “Dates for Filing” chart.³ Applicants with a current priority date on that chart can file Form I-485 but will not be eligible for adjudication until their date is current on the “Final Action Dates” chart.

In my example, the applicant was born in India, and had a priority date earlier than July 8, 2012, (the cut-off date for EB-2 India on the “Dates for Filing” chart), but later than September 1, 2011 (the cut-off date for EB-2 India on the “Final Action Dates” chart).  He had an approved EB-2 I-140 but had recently filed Form I-485 for himself and his family based on a concurrently filed EB-3 I-140 downgrade “new” filing since his priority date had not previously been “current” under his approved EB-2 I-140.  Under EB-3 India for both charts, the applicant's priority date was earlier than the cut-off and “current” for final action. 

Looking at the charts, we can see the following as it relates to the applicant within each category:

Even though his EB-3 I-140 is still pending, the applicant's I-485 cases are presently “further along” with the pending EB-3 I-140 since their date is current for final adjudication under EB-3 than were he to switch to EB-2, where it would not be ready for final adjudication.

Would a new EB-2 I-140 need to be filed to change categories back to EB-2? If the EB-3 downgrade was filed as an “Amendment” then the earlier EB-2 would no longer be active and another I-140 would need to be filed. If the EB-3 downgrade was filed as a new filing, then the earlier EB-2 would still be active.

Can the applicant simply file a second Adjustment of Status in EB-2?  The practice of filing a second adjustment of status is discouraged by USCIS.  Following a “first-in, first-out” principle, moreover, the case the applicant filed over six months ago is already closer to adjudication than a second case would be. 

However, if the applicant did decide that they wanted to link their I-485 applications to their approved EB-2 I-140, this could be done by requesting that USCIS transfer, or “Interfile”, their previously filed I-485s from the EB-3 I-140 to the earlier approved EB-2 I-140. For example, if the applicant or their employer has expressed a concern over whether the EB-3 downgrade (filed as a “new” I-140) might be denied, discussions between the attorney, employer, and employee may be appropriate to consider interfiling the pending I-485s to the previously approved EB-2 I-140.  Given how long it takes USCIS to acknowledge interfiling requests, however, this could lead to more delay.  But in some cases, the delay may be worthwhile if other factors make it the less risky option. 

In this example, given that there were no known concerns about the pending EB-3 I-140 downgrade, and given that the EB-2 is only “current” for filing, not for “final action,” the applicant in this case will likely want to stay the course with the EB-3.  Please note though that this analysis could quickly change with the publication of future visa bulletins if the cut-off date for EB-3 India were to retrogress or if the final action date for EB-2 India were to progress further.

Conclusion

Ultimately, the phrase “my priority date is current” tells only half of the story.  To properly evaluate an applicant's priority date situation, a further analysis and understanding about the DOS's two chart system is needed. You should always discuss your situation with your immigration attorney before acting.

Footnotes

1 For more information on “aging out,” please go to: https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa

2 https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-october-2021.html retrieved 09/16/2021.

3 https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/when-to-file-your-adjustment-of-status-application-for-family-sponsored-or-employment-based-69

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