EB2 to EB3 downgrade for Indian Nationals

Recent quick movement of priority dates of EB3 for India has resulted in many looking for options to downgrade.

Porting of Previous Priority Date:

According to 8 C.F.R. § 204.5(e), a subsequent  EB-1, EB-2 or EB-3 petition is entitled to earliest priority date, unless the prior petition is revoked due to fraud. So a subsequent downgrade petition to EB3 or an upgrade petition to EB2 from EB3 typically should retain the previous priority date. In general, nothing additional needs to be done to get the previous priority date other than notifying USCIS that there is a previous approval and request a porting of the previous priority date with the subsequent I-140 petition.

New PERM Filing is not Needed for downgrading  EB2 to EB3:

A new perm filing is typically not needed to downgrade the EB2 to EB3. A new I-140 petition can be filed as an amendment. If the original approved labor certification was filed in support of a previously filed I-140 petition during the labor certification’s validity period and approved,  A new PERM will not be required if an amended I-140 petition is requesting a different visa classification than the visa classification requested in the previously filed petition.

In summary, it is possible to file an I-140 petition without a new PERM to downgrade. and request a porting of previous priority date. However, depending on the dates published in the visa bulletin care should be exercised and should be explored only when such a downgrade is anticipated to be beneficial based on the priority date movement.

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