Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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Dear Sophie,
Why is there no movement in the June 2023 Visa Bulletin for India EB-3?
Can’t the Department of State/USCIS track the interfiled applications between EB-2 and EB-3 and move the dates accordingly?
— Curious in Chennai
Dear Curious,
Thanks for your questions! The Visa Bulletin has been very volatile of late and I totally understand your frustration with retrogressions and lack of movement in the employment-based green card categories.
My dream is that any child born anywhere in the world has the opportunity to follow their heart to do things that will make the world a better place — and to that end I’m doing what I can to educate folks about immigration options and strategies to live and work legally in the United States!
Toward that end, let me provide a bit of context about downgrading from an EB-2 advanced degree or exceptional ability green card to EB-3 professionals and workers green card, the process of interfiling and movement in the Visa Bulletin. Check out this Ask Sophie column in which I talk about the availability of employment-based green cards and the Visa Bulletin.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
Downgrading and interfiling
Downgrading is when an employer files a new Form I-140 green card petition for an employee in a lower employment-based preference category to take advantage of a more favorable priority date in that lower category, which may lead to a green card number becoming available sooner. Most often, downgrading occurs when an employee born in India or China has an approved I-140 EB-2 green card application and is waiting for a green card number to become available. (If the employer, job, location and pay have not changed from the original PERM application, a new PERM application is not required.)
When the downgraded I-140 is approved, the employer can file an I-485 application to register permanent residence or adjust status for the employee as long as the employee’s priority date is current in the downgraded category. The priority date is the date that the U.S. Department of Labor received the PERM labor certification application for the EB-2 or EB-3 green card or the date that U.S. Citizenship and Immigration Services received the EB-1 or EB-2 NIW (National Interest Waiver) I-140 green card application, which do not require PERM.
Employers who already filed an I-485 for a green card category on behalf of their employee can request that the pending I-485 be transferred to another I-140 approval, which is called interfiling. For example, if an individual who was born in India has an EB-2 I-140 approved and filed an I-485, but the final action date for the EB-3 final filing date for their priority date is current, it’s possible to request that the pending I-485 be transferred from the EB-2 I-140 to the EB-3 I-140.
What can make interfiling tricky is that a written request to interfile does not generate a receipt number, so it’s difficult to track the status of such a request, and interfiling is at the discretion of the USCIS officer or officers handling your case.
Movement — or lack of it — in the Visa Bulletin
The U.S. Department of State (DOS) determines how many green card numbers are available for the upcoming month based on application approval numbers from both DOS and USCIS. Based on that info, DOS decides whether each green card category and country of birth should be current, retrogress or move forward. (USCIS issues a Visa Bulletin as well based on the DOS Visa Bulletin usually a week after the DOS release.)
There is no guarantee that priority dates will move forward once they retrogress. Individuals who have a priority date that becomes qualified don’t always immediately proceed with filing an I-485. They will proceed at their own convenience. People coming forward can create volatility. Moreover, older cases that become qualified may require additional updated evidence.
DOS and USCIS track all cases including downgraded and interfiled. DOS moves the priority date for each category and country of birth accordingly. So, to answer your question, no movement in the June 2023 Visa Bulletin in the EB-3 category for individuals born in India means demand in that category from those individuals continues to remain high.
Right now, downgrading or interfiling to EB-3 from EB-2 is very risky, particularly for individuals born in India, since the final action date for the EB-3 India is expected to retrogress (go back to an earlier date) as early as July. The latest Visa Bulletin warns: “Steady number use and high demand in the EB-3 category for India will most likely necessitate retrogression of the EB-3 final action date for India as early as next month to hold number use within the maximum allowed under the FY-2023 annual limit.”
Demand in the EB-2 and EB-3 categories has increased, prompted in part by the retrogression of the EB-4 category. Among the individuals eligible for the EB-4 green card for special immigrants is a potpourri of religious workers, juveniles, broadcasters, members of the U.S. armed forces, employees of the U.S. government and their family members, and retired officers and employees of G-4 organizations or NATO-6 and their family members. Many organizations that typically sponsor EB-4 applicants are shifting their sponsorships to the EB-2 and EB-3 categories as a result of the retrogression.
Remember to maintain valid nonimmigrant work visa status when you’re waiting for your green card, so you have extra security to continue to live and work in the U.S. through all these twists and turns.
Here’s hoping your wait will be over soon! You’ve got this!
All my best,
Sophie
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity and connecting the world by practicing compassionate, visionary and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!