Immigration

Srinivasa Reddy Kandi: USCIS Position on Validity of I-140 Petitions

March, 04, 2025-05:29

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USCIS Position on Validity of I-140 Petitions

The trend of downgrading from EB-2 to EB-3, which commenced in October 2020, along with USCIS's encouragement for EB-3 applicants to transition to EB-2 to take advantage of available visa numbers, has led to several emerging concerns. A significant issue pertains to the validity of the original EB-2 I-140 approval when the EB-3 downgrade I-140 petition is submitted as an amendment instead of a new petition.
Reddy Neumann Brown PC has informed petitioners that downgrade petitions should typically be submitted as new petitions rather than as amendments. An amendment is only warranted in cases where there has been a change in corporate structure, necessitating the petitioner to demonstrate that it is the successor in interest to the original I-140 petitioner. Some legal advisors have been misguiding employers by stating that a downgrade I-140 petition must be filed as an amendment. This misunderstanding stems from the USCIS policy manual's references to the use of an expired labor certification.

USCIS continues to accept amended or duplicate petitions accompanied by a copy of a permanent labor certification that has expired at the time of filing, provided that the original permanent labor certification was submitted in support of a previously filed petition during its validity period. Such filings may occur under the following circumstances:

1. A change in the employer that qualifies as a successor-in-interest, which necessitates a new or amended petition.
2. The petitioner intends to submit a new petition following the denial, revocation, or abandonment of a previously filed petition, as long as the permanent labor certification was not invalidated due to material misrepresentation or fraud related to the labor certification application.
3. The petitioner files an amended petition to seek a different immigrant visa classification than that requested in the earlier petition.
4. USCIS or the U.S. Department of State (DOS) determines that the previously filed petition has been lost.
Petitioners are not permitted to appeal a USCIS decision that denies a petition submitted with an expired permanent labor certification issued by the Department of Labor.

While the aforementioned statement implies that an amended petition is necessary to seek a different immigrant visa classification (for instance, downgrading from EB-2 to EB-3), previous experiences with downgrades indicate that USCIS also accepts new petitions for a different immigrant visa classification.

The distinction between amending and filing new petitions typically does not affect the final outcome of the I-140 approval, as both methods achieve the same objective of securing a new I-140 approval in the EB-3 category. However, with USCIS currently encouraging applicants to transition to the EB-2 category, this distinction has gained significant importance. USCIS has recently clarified that when a Form I-140 is approved as an amendment changing from EB-2 to EB-3, the EB-2 petition is effectively nullified, leaving only the EB-3 petition. In contrast, when a Form I-140 is submitted as a "new" petition for a change from EB-2 to EB-3 and is subsequently approved, both an EB-2 and an EB-3 petition remain approved. The agency maintains that if the original I-140 petition has been amended from EB-2 to EB-3, the original EB-2 petition ceases to exist, and the petitioner is required to file a new EB-2 petition rather than transferring the adjustment of status to the original EB-2.

When the downgrade petition is submitted as an amendment, it is not feasible for an applicant to interfile the original EB-2 I-140 approval to shift a pending I-485 from the EB-3 category to the EB-2 category. Additionally, filing a new I-485 application in the EB-2 category based on the original EB-2 I-140 approval is not permissible, as that approval is no longer recognized under USCIS guidelines. Consequently, for a downgrade applicant whose EB-3 I-140 petition was submitted as an amendment to transition to the EB-2 category, the petitioner must initiate a new I-140 petition in the EB-2 category, utilizing the same labor certification as the previous two I-140 petitions, provided the job offer remains unchanged. If the final action date is current in the EB-2 category, once the new I-140 petition is filed, a pending I-485 can be transferred to the new EB-2 I-140 by submitting a new I-485 Supplement J along with the receipt notice for the new I-140. If there is an intention to file a new I-485 and the priority date is current in EB-2, both the new I-140 and I-485 may be filed concurrently.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.