Priority Date Retention and EB-2/EB-3 Upgrades and Downgrades

01

Regulation: The priority date of an approved petition can be retained

8 CFR 204.5(e) provides that the priority date of a petition approved under EB-1, EB-2, or EB-3 may be used for any subsequently filed EB-1/2/3 petition, provided the beneficiary qualifies for that category. If there are multiple approved petitions, the earliest priority date may be used.

02

When retention is not permitted

The same provision specifies that the priority date may not be retained if USCIS revokes approval of the original petition for certain reasons, such as fraud or willful misrepresentation, revocation or invalidation of the labor certification, or material error. Consult the original eCFR text for the specific circumstances.

03

Upgrades and downgrades

What community discussions commonly call a “downgrade” means having an existing EB-2 I-140 and then filing a new I-140 under EB-3 (usually requiring the corresponding labor certification), while retaining the EB-2 priority date; an “upgrade” proceeds in the opposite direction. Whether this is faster depends on the Visa Bulletin dates for the two categories that month. This site does not recommend making the decision solely on the basis of community experiences.

Each upgrade or downgrade adds a petition record, which is one reason USCIS inventory tables note that “one person may have multiple petitions.”

04

Changing the underlying basis after filing I-485

The USCIS employment-based immigration page explains that, while an I-485 is pending, an applicant may request in writing to transfer the underlying basis of adjustment to another approved or pending I-140. USCIS expressly states that “in certain circumstances,” Supplement J must accompany the transfer request to confirm the job offer in the petition serving as the new underlying basis. Supplement J is not required when transferring to an I-140 that is still pending or when submitting the transfer request concurrently with a new I-140.

Supplement J applies to employment-based categories that require a job offer. USCIS states that Supplement J does not need to be submitted with I-485 when adjusting status based on a national interest waiver (NIW) or extraordinary ability (EB-1A) without a job offer. It therefore cannot be generalized that “Supplement J must accompany every transfer.” A portability request to move to the same or a similar occupational classification after the I-485 has been pending for at least 180 days is also made through Supplement J.