The EB-2 and EB-3 are both employment-based visas that grant permanent U.S. residency to foreign nationals. However, the conditions for obtaining them are different, as well as the waiting time.
Foreign nationals are welcome to apply for an EB2 -visa if they are holders of an advanced degree, which means bachelor’s degree or higher (master’s, doctorate), and if they have five years’ experience in the work field they wish to apply for. Besides this requirement, a foreign national may be eligible for the EB2 visa if he/she has an exceptional ability in science, art, and business, which will be highly beneficial for U.S. interests. A person is considered to fall within this category if he/she performs an above-average degree of expertise in the mentioned fields of work.
EB3 visa has less stringent requirements as it does not require an advanced degree, exceptional ability, or specialized knowledge and is addressed to skilled workers, professionals, and other workers-unskilled labor. Skilled workers are needed to have a minimum of 2 years of training or experience, while the professionals hold at least a U.S. baccalaureate or foreign equivalence and are members of the professions. The other workers are persons who perform unskilled labor that requires less than two years of training, education, or experience but are not temporary or seasonal. As an EB-3 visa applicant, all you need is a job offer from a U.S. employer.
According to the October 2020 visa bulletin, there have been changes regarding people from China and India nationals’ mentioned visas. It has been easier to obtain an EB2 visa for a long time, and the waiting time was shorter. This situation resulted in more demands for EB2 visas, while the EB3 process became less burdened. This situation will surely be limited until the EB3 becomes loaded, so those who act faster can expect to have benefited from this current change. The good news is most people who are eligible for the EB2 visa will qualify for the EB3 visa as well, and you can downgrade from EB2 to EB3.
To downgrade from EB2 to EB3, the applicant’s employer will have to file an I-140 Petition for Alien Worker and a PERM labor certification. PERM labor certification proves that the U.S. employer attempted to hire a U.S. employee but failed to find the suitable one. This PERM labor certification can be the same one that is already used to apply for the EB2 visa if the applicant continues to work for the same employer. If the applicant changes the employer or is not employed, the new PERM labor certificate must be submitted. The applicant must work for the employer that hired him/her for six months and, after that, can freely change the job position. Premium processing that is usually available for visa applications and helps you speed the process by paying an additional fee will not be possible if your old employer applies within this scheme. That is because the prerequisite for requesting the premium processing is filing the original PERM labor certificate. In this case, the USCIS already posses the original certificate from the previous EB2 application. Despite it, there still exists an option of moving faster in this process, so it is possible to file EB3 i-140, i-485, together with EB-2 PERM in regular processing. Once the receipt numbers are issued, the pending i-140 can be upgraded to premium processing. Anyway, if your i-140 is filed at the same service center that previously approved your i-140, it will be possible to obtain premium processing.
When the new EB-3 I-140 petition is approved, and the EB-3 priority date is current, the applicant can then file a Form I-485, Application to Adjust States, together with the companion EAD work permit and advance parole travel applications.
Since the EB-3 downgrade’s primary goal is to file an I-485 adjustment of status and not know how long the excellent cutoff dates in the Visa Bulletin will last, in most cases, it is highly recommended filing for both I-140 EB-3 downgrade and I-485 concurrently.