Based on the allocation trends for the employment-based green card caps, in some months the priority date cutoff for EB-3 can move ahead of EB-2, even through EB-3 is a lower preference category.

When this happens, individuals who have an EB-2 priority date that is not prior to the EB-2 priority date cutoff, but that is prior to the EB-3 priority date cutoff, can file an application to “downgrade” their priority date from EB-2 to EB-3 so they can take advantage of the more advanced EB-3 cutoff and become eligible to file an Adjustment of Status application.

To downgrade a priority date from EB-2 to EB-3, an individual must have their employer file a new EB-3 I-140 petition on their behalf. A new PERM application is not required if the individual continues to work for the same employer that filed their PERM and EB-2 I-140.

When filing an EB-2 to EB-3 downgrade application, the individual’s EB-2 priority date will be retained and converted to an EB-3 priority date. I-140 petitions to downgrade a priority date are not eligible for premium processing. However, an individual can file an I-140 petition to downgrade from EB-2 to EB-3 concurrently with an Adjustment of Status application, as long as their EB-2 priority date is earlier than the priority date cutoff for EB-3.

Yes. An employee is legally permitted to pay all government filing fees and attorney fees associated with an I-140 petition to downgrade from EB-2 to EB-3. However, since an I-140 petition is an employer-sponsored petition, the employer must still agree to sponsor the petition and sign the petition documents - an employee cannot file an I-140 petition individually, without employer authorization.

Yes. An employee is legally permitted to pay all government filing fees and attorney fees associated with an I-485 Adjustment of Status application for themselves and their qualifying dependents. An Adjustment of Status application is filed by the employee individually, and thus requires no employer authorization or coordination.