The October Visa Bulletin has been released and there is significant movement in priority dates, especially for EB3 India and China. See figure below.

For those with pre-approved I-140s in the EB2 category, the possibility of filing a second application under the EB3 category and concurrently filing an Application to Adjust Status is both tantalizing and disconcerting at the same time. Several websites loudly proclaim the ease of filing and the enormous benefit it offers the applicant.

I have been asked to consider this possibility by several clients and I wanted to share some thoughts with you.

  1. How did we get here?

Here is the question that begs asking: why are the EB2s PDs behind the EB3? Several years ago, the EB3 was so far behind the EB2 that several candidates found ways to get ahead by qualifying for and filing petitions for the EB2 classification. This group grew steadily, and as the demand for EB2 grew, the visa numbers began to reflect this shift. So, with hundreds, possibly thousands of individuals looking to “downgrade” we may be back where we started!

  1. What are the risks and How would the USCIS Challenge the EB3 Filing?

Under normal circumstances, the regulations allow for a second Immigrant Petition in a lower category if the Beneficiary is qualified for the benefit even though previously approved under the EB2 category.

However, these are not normal circumstances. The Country has been subject to a life altering event that has caused the unemployment rate to jump to 8.4% after skyrocketing to 14.7% in April. As most practitioners are aware, recent USCIS adjudication of Immigrant Petitions has departed from well established Service policy. It is instead driven by the President’s April 2017 EO: Buy American and Hire American: Putting American Workers First agenda.

RFEs for Immigrant Petitions have taken a rather activist tone. One recent I-140 RFE requested:

The petitioner must establish that a valid employment relationship exists and that the job was open and available to U.S. workers. Please submit independent objective evidence to illustrate this. This evidence should include, but is not limited to, the following:

  • Copies of recruitment reports
  • Submit the original newspaper job ad
  • Furnish a statement explaining specifically how the alien applied for and was selected for the position, to include how the employer obtained the alien’s job application (e.g., through a direct phone call by the alien or mailed in response by the alien or through a recruiter) and whether and by whom the alien was interviewed
  • Copies of all recruitment reports (which shall include the numbers of workers interviewed for the position, their academic credentials, and the reason(s) they were not hired for the position)
  • Copies of all resumes and job applications submitted by applicants for this position
  • Copies of all job posting notices; including a statement concerning posting location(s) and the beginning and end dates that the notice was posted
  • Copies of all print advertisements
  • State Workforce Agency (SWA) job orders

This RFE received by our Office in the past month, may be considered by some as just an aberration. However, I believe it portends of more ominous things to come. If the Service chooses to question the underlying recruitment efforts, it may also question whether U.S. workers with lesser qualifications were rejected. In other words, did the employer inflate the requirements of the position to eliminate qualified U.S. workers? This goes to the heart of the validity of the underlying certified PERM application. This could seriously jeopardize subsequent filings by the Employer and critically affect others who are currently waiting in line.

  1. What Happens if Thousands Apply?

We started this discussion with the possibility of thousands applying to gain an advantage and it goes without saying that this could certainly slow things down. More importantly, even without the downgrades, this month’s bulletin will lead to a dramatic increase in USCIS workload. A workload that they are ill equipped to handle given their ever-shrinking budget. This could potentially lead to applications remaining pending for several years before being approved.

  1. What is the worst-case Scenario?

For most employees in H-1B status, an approved EB2 I-140 petition is probably the basis for extension beyond the sixth year. If the Service challenges the downgraded petition and subsequently denies it, the regulations allow for the original petition to stand. However, if the underlying PERM is challenged and revoked, the EB2 approval will also be revoked. Should this happen, the very basis for further H-1B extensions would evaporate.

Therefore, I counsel against rushing to file before knowing how this administration is likely to view these cases and to see if the advancement is likely to be sustained. No matter what your decision is, I highly recommend weighing your risks carefully before seeking to pursue a “downgrading” option.