Can I apply for EB3 I-140 and I-485 at the same time?

Hi Anil

Currently, I am with Company-D, the 4th Company, since my first EB2 PD was approved. My EB2 PD is 08/20/2009, which is through Company-A, and I have a valid I-140 with same PD (08/20/2009) in my current company. This is my 4th I-140, and I am waiting for the EB2 PD to become current.

Given that the EB3 PD filing date is 04/01/2010 and final date is 04/22/2009, I would like your advice on speeding my GC through EB2–>EB3 porting.

NOTE:- Sorry, some of the questions might be simple or stupid or incorrect. I am confused and want to be cautious as I have missed filing I-485/EAD, when jumped to Company-B and then to Company-C. I do not want to risk again. So, PLEASE EXCUSE ME for any invalid/incorrect/stupid questions.

My questions are:-

  1. Can I apply for EB3 I-140 & I-485 at the same time?

  2. Will I be eligible to apply for EB3 I-140 Premium Processing in the same service center? I.e., Apply EB3 I-140 using current I-140 in the same service center where current I-140 was approved?

  3. Can I apply for EB3 I-140/I-485 without affecting current EB2 I-140? Is there anything I should get confirmed from my current employer(attorneys) on not cancelling existing EB2 processing? (not fully understood this topic “Downgrade EB2 to EB3, then Upgrade again to EB2 later?”)

  4. Another Big concern that I have is what if EB3 processing is applied and EB3 is RETROGRESSED? What will happen to the current EB2 processing? Because, I would love to have the option of both EB2/EB3 process going on without either of them getting cancelled… So, I will have the benefit of whichever comes first.

  5. Based on EB3 movt from Oct-2015 to-date, it seems, approx, in 3 to 4 months the EB3 PD will be current for me; whereas, for EB2 it’s between 18-24 months. I definitely, don’t want to miss this opportunity (GC Thru EB3). In case, if EB3 I-140 Premium (in the same service center) did not works out, should I wait for EB3 Final Action Date to be current or be prepared now itself? (assuming my EB2 GC process will not be affected)?

  6. After application for I-140/I-485 is submitted (and accepted) thru EB3 route, if Retrogression happens, what happens? Will my application be on hold or Retrogression has no effect on already submitted applications?

Please Advice

EB3 i140 and i485 concurrent filing

Yes, you can file EB3 i-140 and i-485 concurrently at same time.

EB3 i140 downgrade in Premium processing

Yes, you can file for premium but its not guaranteed. Please read this article for more info about premium.

EB3 and EB3 i140 approvals stay active

EB2 and EB3 approvals stay in their place and active. You just need to file a new EB3 i140 based on EB2 PERM to be eligible for EB3 dates.

Change EB3 i140 with EB2 i140 for pending i485

The underlying i140 can be changed for pending i485. So, you can legally use any of them i.e. EB3 and EB2 i140. But, there are complexities involved and your attorney can guide you on when and how to do what.

getting ready for EB3 PD date getting current

I suggest to wait for EB3 final action date to be current for you before you take any action.

Green card Priority Date retrogression

Retrogression is a BIG issue. That’s the biggest problem everybody faces! If it retrogresses, your i485 application will stay pending until it gets current again, which may or may not take years.

That’s the irony of US immigration system.

Hi Anil, Thank you for thepatience and detailed answers .I am sure I am trying to be smart but, actually, could be so stupid and all this is because of desperation having waited 10yrs and missing I-485 couple of times.

For “2”: So, I assumed that even if EB3 I-140 is filed in the same service center by the same current company, there’s no guarantee. If not, correct me.

For “5”, Sure, will wait. But, based on your reply in “3”, applying for EB3 I-140 will not affect existing EB2 process right? So, is it better to apply premium EB3 I-140 and if not wait for normal EB3 I-140 for 3 to 6 months by which either EB3 or EB2 becomes current? . The reason that I am asking is that if after 3 to 4 months EB3 PD becomes current for me and if I apply at that time again it might take another 3 to 6 months, by which many would have jumped into EB3 ship worst case causing retrogression/delays… But, if I apply for EB3 I-140 (without affecting existing EB2 I-140), then, within 3 to 4 months if EB3 PD becomes current, I just can get EAD/GC before it gets jammed again, right? Except the filing expenses, I do not see any downside to it (ofcourse thanks to your clarification on other questions)?

For “5” another reason I wanted to apply EB3 I-140 premium/not-premium is, apart from all clear answers from you, that :- Anyone having a PD later than 08/20/2009 (dec-2009, mar-2010 etc) can possibly jump into this opportunity and by the time before I could apply, if it gets jammed then I would lose an opportunity. Again, I have seen this happening in 2011/2012 period when a friend with PD in 2013 got his EAD in front of my eyes and before I jumped in it got retrogressed.

Sorry, once again, for this lengthy question.

Please advice.

Yes, your understanding is correct.

Hi Anil

I saw the below comment (by Kars) posted (6 days ago) here and confused. As mentioned my PD (08/20/2009) is from company-A and now I am in company-D with approved I-140 (with same PD as company-A). Per below comment, it says I have to be in original employer for EB2 to EB3… ? Did it mean that if the current employer is okay to file EB3 I-140 as well, I am good or otherwise? Please clarify… I am keeping my fingers crossed …

“This is just my hinge based on different scenario. Most of the EB2 folks are in EAD and might have been moved to different employer. Its not viable option for those as they need to start from PERM. That would be 2 years process. Only case where downgrade possible is who ever is working same original employer . So they can do courtesy EB3 downgrade to help those folks. EB3 final action date would hit Mar 2010 easily before Sep 2019.”

Thanks
Raj

  1. You can either file EB3 downgrade (EB3 i140) with your current employer’s EB2 PERM - This is slower as you have to file EB3 i140
    OR
  2. Go back to work for old EB3 employer - This is faster option as you already have EB3 i140 approved.

Hi Anil

Have this clarification request as I am worried much on what to do to get into EB3 line.

My Attorneys are delaying it and have not started any documentation yet; they’re saying it takes ~5 weeks to prepare EB3 I-140 documents . In fact, they initially said that EB2 is moving, we can’t do EB2 to EB3, we can’t do electronic filing, and then they said EB2 will be affected etc… I am totally worried and confused. The strange thing is my employer does not have any problem doing it and helping me to do whatever it takes.

For ref:- I am with 4th Employer(Company-D) on approved EB2 I-140 and a PD of " 08/20/2009 ". Since my 1st employer(Company-A), I’m on EB2.

So, can you please help me with the time it takes to prepare the EB3 docs, electronic filing of EB3 I-140, the fees associated with, any particular document to make sure the existing EB2 is not affected etc? It will help me to get on call with them this late evening or Saturday. The biggest worry for me is why they’re trying to dodge this when my employer is fully supportive of it.

Thanks

Everything takes time and you should believe your attorney on what they say.
Why would they delay your application when your employer is paying them fees. They work for money and they are getting it.

Talk to them in detail about your case.

Anil Thanks a lot. Based on many things I learnt here and from your Inouts, I had a call ~30 minutes ago.

Please note:- I was not even aware of EB2 to EB3 before stumbling on your post recently. So, hope you understand my anxiety.

Discussion points
0) They confirmed that EB2 I-140 will not be affected and I can go for I-485/AOS whichever line becomes current first (thanks for ur blog). In this case, the expense will be only for EB2 I-485/AOS

  1. Option-01: Apply EB3 I-140 Premium along with I-485 by 31st Jan. They said, It’s impossible to file before Jan 31st as medical/docs would take couple weeks.
  2. Option-02: Apply EB3 I-140 Premium along with I-485 in Feb. EB3 will be approved and I-485 will be sitting there for AOS. When checked again, they confirm that I-140 will be preimum as of now and they can apply it as premium. The total cost would be around $8k.
  3. Option-03: Apply EB3 I-140 Premium along with I-485 in future once EB3 Final Action Date is current for my PD. Both EB3 and I-485 will be approved and AOS will be done. When checked again, they said there is no guarantee that I-140 will be premium at that time. The cost will be the same approx around $8K.

Given the above options,
(1) is there any remote change for “Option-01” can be done in expedited way? .
(2) Is there any plus/downside to Opt- 02 or Opt- 03 ? Apart from the expenses, I would like to go with Opt-02 and be ready for EB3 Final Action Date to be current for my PD (ofcourse keeping my fingers crossed).

Are there any other better way I can proceed (with help from Attorneys) on my GC march?

Seriously, with all my technical expertise, I feel so dump in understanding the whole process or how to reach to the other side of the GC line. Appreciate your advice/suggestions.

Thanks

Point 0 - This is same as I already shared earlier with you. Underlying i140 can be changed for pending i-485.

Not sure how fast you want. If they are saying Jan 31, then it is just a week away! or is it a mis-typed date?

I can understand your anxiety as you are so close to GC after waiting for 10 years.
My suggestion is to go with option 03 though.

Thanks Anil.

Sorry My bad. In “point 0”, I was referring to EB3 I-140 wioh I-485 and that Attorneyrs confirmed (just updated you, because after I referred this post, they confirmed)

Option-01: Yes, applying for EB3 I-140 Premium by 31-Jan-2019. Seems, they cannot do this because of short timeline.

Will do Opt-03 as suggested( Tuesday, I’m having a call with Attorneys ) But, just for my little consolation… is there a specific reason you want me to go to Opt-03 instead of Opt-02? How does it helps or better than Opt-03? Or did you mean that because anyhow, I-485 is considered only when Final action date is current? But, if we go Opt-02, we’ll be at least sure with I-140 premium and when Final action date becomes current, all they have to do is do AOS, and there will be no delay right? (we can save 2-3 months?). Request you to please let me know.

The only benefit of option 3 is saving money.
If you want to save time, you can go ahead with option 2 and then you will have both option I. E. EB2 and EB3 ready to be filed.