Last Updated on January 12, 2023 by Linda Lee

The priority date to file employment based I-485 for Indian nationals has moved up about 5 years for 3rd preference according to the October 2020 Visa Bulletin.

If you are from India and your priority date is earlier than January 1, 2015, this is your opportunity to file for adjustment of status as the priority date for filing adjustment of status for employment-based 3rd preference date may retrogress in November 2020 Visa Bulletin.

First: How to read the Visa Bulletin?

When applying for a green card, something that has to be considered is how much backlog there is for your particular case. The visa bulletin is a monthly update from the Department of State that shows, for each type of petition (preference), if the priority date is current, or alternatively, how much backlog there is.

The priority date is the date that USCIS received an immigrant petition for you on behalf of your immediate relative or employer.

You will know your priority date when the visa petition for your green card is approved (you will see it in your I-797 notice).

If the priority date for your case is “Current” (C), it means that there is a visa available for you and you can prepare and submit your adjustment of status application.

If the priority date is not current (i.e. when it shows a date), it means that there’s not yet a visa available for you and only people who’s priority date is prior to the date shown in the visa bulletin can apply for adjustment of status.

When reading the Visa Bulletin, there are 2 dates you should pay attention to:

A. Final Action Dates

This date shows whether or not there’s a visa number available for you, and if not, when it is expected to be available. If you ever find this date to be later than your priority news, it is time for you to get a green card.

B. Dates for Filing

This date shows whether or not you can file your application for an immigrant visa. Applicants for immigrant visas who have a priority date earlier than the application date in the “Dates for Filing” chart may assemble and submit required documents to the Department of State’s National Visa Center, If you find this date to be later than your priority date, it is time for you to submit your application.

What happens most of the time, is that the dates for filing are later than the final action dates. This means that once your priority date reaches the date for filing you can submit your application even though there’s no visa available for you just yet.

If there’s not a visa available for you just yet, then why do it now? Because this will allow you to get the benefits of a pending adjustment of status application, meaning that you can apply for work authorization and advance parole for example.

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When reading the Visa Bulletin, another factor that you need to pay attention to is “Preferences”, which is basically the category associated with your type of petition.

For Employment-Based Visas, the U.S. Department of States categorizes applications into 5 preferences:

First:

Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:

Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:

Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:

Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:

Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

So, why is such a big deal that the “Date for Filing” moved up 5 years for Indian Nationals in the 3rd preference?

Given the high demand for immigrant visas from certain countries like Mexico, El Salvador, Guatemala, Honduras, China, the Philippines, and India, these countries have their own separate visa bulletin dates.

As you would expect, the dates for these countries move extremely slow, so the fact that the “Date for Filing” for EB3 moved up almost 5 years for Indian nationals from September to the October 2020 Visa Bulletin is a big leap and great news for Indians in the 3rd preference who were waiting for this date to be later than their priority date. It is also a great opportunity for Indians who are currently in the EB2 Category as they can “downgrade” to EB3 to take advantage of this date.

Can I downgrade from 2nd to 3rd preference to take advantage of the Date for Filing?

Yes, a common strategy for when this happens is to downgrade from EB2 to EB3. The way you do this is by filing a concurrent or new Immigrant Petition for Alien Worker (I-140 form).

Given that EB2 is a higher preference category that has more exclusive requirements such as having a master’s degree or a bachelor’s degree with 5 years of experience, it is expected for this category to move faster (as fewer people should be able to apply). But as we have learned, that’s not always the case. One of the reasons for this is that there are more highly qualified Indian nationals applying under EB2 than before and at the same time, considering that EB3 is supposed to move slower, many applicants have been “upgrading” their case from EB2 to EB2. This allows for the EB3 category to have more space and therefore, move faster.

That said, we recommend acting quickly. Many applicants will apply this strategy, so we can expect the EB3 category to retrogress soon, as there will be a massive shift from EB2 to EB3.