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Introduction

AWaiting for the priority date to be current can be stressful, especially if this period already took it too long, which is incredibly usual if you are from China or India. If you are one of many people waiting for your green card application to move forward and are fed up with sitting and expecting this important news, you probably try to learn as much information as you can so that you can plan your stay in the United States.

There is one important source that will help you with this. It is Visa Bulletin that the U.S. Department of State — Bureau of Consular Affairs publishes each month detailing waiting lines for green cards.

Just last month, and again in November, the waiting line for the priority date for Indians in the EB-3 category jumped forward, allowing thousands of people to file the I-485.

The October 2020 Visa Bulletin brought some bad news, especially for those in the family-based categories. On the other side, it provided a silver lining for petitioners in the employment-based categories. This trend continued with November Visa Bulletin 2020, as well. It made many people from India and China who have EB-2 petitions consider downgrading to an EB-3. This is because EB-3 is moving past the EB-2, and this situation is pretty rare. EB-2 usually used to be a faster route to a visa than the EB-3.

Hence, it would be best to learn how to act and navigate the EB-3 downgrade strategy with the changed situation. To be completely prepared, you should also know what the potential pitfalls you might encounter and how to avoid it in the process. We prepared answers to the most common questions and concerns to understand how to deal with the current situation and obtain the green card.

First, let’s clarify what the Visa Bulletin is and why it is essential to know how to read it.

The visa bulletin exists because Congress sets the limit on the number of green cards issued each year. Moreover, the number of people seeking green cards has consistently exceeded the limit, and it created a backlog.

Being in line for a green card means that you have to keep track of actual changes you can see in the Visa Bulletin for the current month. To be ahead of any unpredictable situations, it is advisable to have all your documents needed for your green card application prepared in advance. This way, you can avoid losing a chance to file your application, or while in panic, forget to attach any of the documents. Instead, make sure all of your important documents are in a folder, in the right order, waiting to be submitted. In that case, you will be ready to file your application as quickly as possible right after the Visa Bulletin shows a green card is available to you. If you fail to apply in a month when a green card is available to you, you can face a backward movement called “retrogression” in the next Visa Bulletin. This way, you may eventually lose the opportunity to file for a lawful permanent residence.

As mentioned above, there is a limited number of “green cards” granted each year. Green cards are divided into categories based on sponsorship, based on family or employment, and other factors within those categories. Also, allotment is divided by country, and there are 7% available green cards per country. If more people apply than the number of available visas, it will cause a waiting line to develop. By the end of the fiscal years, the allotment should be used, but if there are any unused green cards by September 30, they can be used the following year.

As mentioned above, DOS is charged with managing the waiting lines showing based on an assessment of demand against the number of available green cards and releasing it in the Visa Bulletin each month. You can check here how dates fluctuate in the November Visa Bulletin.

Recently, the U.S. Department of State began issuing two charts. The first one is Final Action Dates showing the actual waiting line for that month and the Dates for Filing presenting what DOS expects to be available in the coming months to help manage the workload.

Currently, 366,000 green cards are available annually. The total number is divided into a complex category system, with a specific quota for each category. There are two broadest types: family-based green and employment-based green cards. When it comes to family-based green cards, the total number of available green cards is 226,000, including marriage-based green cards. Speaking of available employment-based green cards, this number is lower – 140,000 green cards are available for people who want to work in the United States.

This is not a problem for European or African countries that, by far, generated enough green card demands against the country cap. But on the other side, countries with a significant population, like China and India, face substantial backlogs. For example, when it comes to India, which is the most retrogressed country, the dates for EB-2 and EB-3 for Green Card used not to move, and the number of Green Card issued for EB-2 came from 23,000 to only 3,000 in 3 years.

So, why do these backlogs happen? The one answer is because there’s no spillover from EB1 to EB2 ROW and EB2 ROW to EB2.

But, there is one more reason- because there is EB3 to EB2 porting.

This means applicants in EB3 would have gained enough experience and become eligible for EB2, and transferring to EB2 would increase the wait times of those applicants.

So, know you probably want to know how to calculate the wait times for your Green Card.

In the 2020 October Visa Bulletin, EB-3 India and EB-3 China appeared to be advancing more aggressively related to EB-2 India and EB-2 China. For example, EB-3 India moves by 3.5 months (7 weeks for EB-2 India) while EB-3 China is forwarding by 5.5 months (EB-2 China advances by six weeks). Under the Dates for Filing category, this is even more noticeable: EB-3 India advances by about five years while EB-2 India advances by two years. Sometimes, the wait can be as long as ten years for the priority date to become current on the I-140.

The November Visa Bulletin includes:

  • Dates for Filing Visa Applications chart indicating when intending immigrants may file their applications for adjustments of status or immigrant visas
  • Application Final Action Dates chart showing when adjustment of status applications or immigrant visa applications may be approved and permanent residence granted

The USCIS decides which chart it will follow each month. In November, the USCIS determined to follow the later “Dates for Filing” for the EB- Employment-Based Visa Applications chart for employment-based filings for adjustment of status.

Therefore, if you seek to file applications for adjustment of status with USCIS in November 2020, you may use the Dates for Employment-Based Adjustment of Status Applications.

What is the November Visa Bulletin bringing when it comes to EB-2 and EB-3 for those two countries, India and China? USCIS will allow the following applicants to file I-485 in November 2020:

India

  • EB-2 Priority Date before May 15, 2011;
  • EB-3 Priority Date before January 1, 2015.
  • Downgrade possibility: EB-2 India with Priority Date between May 15 and January 1, 2015.

China

  • EB-2 Priority Date before October 1, 2016;
  • EB-3 Priority Date before June 1, 2018.
  • Possible to downgrade: EB-2 China with PD between October 1, 2016, and June 1, 2018.

As you can see, there are options to downgrade your EB- 2 to EB-3, and you can take it into account since it has some advantages. If your priority date is current in EB-3, and when you downgrade, you will be able to file I-485 for you, but also your dependents. Also, when your I-485 has been pending for six months, you can switch employers. Many workers from India whose employers have filed EB-2 category I-140s (whose priority date is not current for that category) are seeking to downgrade and re-file the I-140 for the Eb-3 category (which is current) while retaining the EB-2 priority date. The problem is, many employers will not file the I-485 for these workers. The workers are often left to find their attorneys to handle this for themselves, their spouses, and children. Find out how to downgrade your EB- 2 to EB-3.

So, downgrading to EB-3 will result in the ability to file the I-485 form for the adjustment of status. While your I-485 application is being processed, suppose that you filed it while you were inside of the United States, you are allowed to stay. But, while you are waiting for a decision, you cannot travel outside the United States because this can cause your application to be denied. Learn how to file I-484, Application to Register Permanent Residence, for EB-3 applicants quickly and adequately.

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Why This Big Jump in EB-3 Took Place Now?

This big jump happened now because the USCIS field offices have been closed, and it started gradually to reopen for the processing of I-485. In addition, consulates of the United States situated abroad have been closed for most services. This means that the field offices and consulates used fewer visa numbers.

Also, we see a drop off in demand for visa numbers due to economic conditions that weaken drastically and made some employers give up on hiring more people in this unstable time. So we may conclude that employers and immigrant applicants delayed or pulled back their applications, and this big jump happened.

As a result, it is expected to see a higher allocation of employment-based visa numbers in the next fiscal year. This will occur because, imposed by law, numbers of unused family-based visas from this fiscal year will be added to the employment-based allocation. We saw a significant employment-based number usage in the fiscal year of 2020 before COVID-19, while we also saw limited family-based visa number usage.

When it comes to the cutoff dates for persons who belong to the category the “Rest of the World,” allocation continues to be current. This means that all eligible individuals to this allocation can continue to file applications to adjust status in November. This will increase the volume of such applications received by the USCIS and the revenue raised by the USCIS, which faces financial difficulties, like many other agencies.

Do You Need an Attorney to Downgrade EB-2 to EB-3?

Although the EB-3 downgrade strategy can be rewarding, many obstacles on that path may prevent you from reaching the final aim. To avoid taking risks and losing the chance to obtain lawful permanent residence and being unsure how to go through the whole process, you should consider taking a legal professional to provide you with the right advice, firm support, and practical skills. Our legal offices have many experienced immigration lawyers who will be able to develop the right strategy for your case, answer all of your concerns and lead you toward finally getting the green card. This process may take some time and be exhaustive, but with the right persons on your side, the journey will be less stressful but more worthwhile once you provide your family with the secure and comfortable living in the country you chose to build your life in.

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