Synopsis—The downgrade petition comes with its own risks as preference is given to applicants under higher categories, but many are willing to take the chance given the long wait times for Indian nationals, immigration attorneys said.
Scores of Indian applicants for US green card under the master’s degree quota are downgrading their applications to a lower preference category for people with a bachelor’s degree in the hope that it would be processed faster.
The US recently advanced the priority date for employment-based immigration third preference (EB-3) category to 2015 for Indians while that for EB-2, which is for foreign professionals holding advanced degrees, is still 2011. This means applications under the EB-3 category would be processed faster, legal experts told ET.
The downgrade petition comes with its own risks as preference is given to applicants under higher categories, but many are willing to take the chance given the long wait times for Indian nationals, immigration attorneys said.
“This (change in priority dates) has created a mad rush to file ‘downgrade petitions’ and concurrently file the I-485 application, which is allowed by law,” said Nandini Nair, partner at law firm Greenspoon Marder, who has been filing hundreds of these petitions in the last few weeks. “The downgrade process requires the employer who has an approved EB-2 I-140 for a foreign national to refile the I-140 application requesting the lower preference category,” she said.
The I-140 is a petition for permanent residency filed by the employer, often called an employer-sponsored green card while I-485 is an application to register permanent residence or adjust status.
In the past, applicants have often tried to upgrade their petitions from EB-3 to EB-2.
The wait time for a green card for Indian nationals can be anywhere upwards of seven to ten years, with some studies projecting wait times of over a hundred years. In June, Senator Mike Lee had said, “Someone from India entering the backlog today would have to wait 195 years to receive an EB-3 green card.”
“USCIS has relied on the ‘final action date’ as the controlling factor in determining eligibility for seeking adjustment of status or completing immigrant visa processing at a US consulate in India and, to date, has not provided any firm guidance regarding this key issue,” said Neil Weinrib, managing attorney at Neil A Weinrib & Associates.
“In the absence of official guidance, many foreign nationals are nevertheless willing to move forward and file for adjustment of status, thereby rolling the dice,” he said. “However, we do expect that with the massive rush in EB-3 immigrant visa petitions, coupled with adjustment of status filings, the quota will likely retrogress due to very heavy demand as we’ve seen this happen in the past when USCIS has suddenly opened the door.”
With the recent changes introduced in the H-1B visa programme, applicants are keen to speed up their residency process. “It also creates the possibility of porting from their current green card sponsor and moving towards a new employer, without being tied down to the original green card sponsor,” Nair said. “Thus, this opportunity can provide these foreign nationals some of the independence and freedom that has been eluding them for so long.”