Last October saw thousands of people applying for downgrades due to the forward movement in the Employment-based EB-3 priority dates. By filing a downgrade, applicants were able to concurrently file an I-485, Application to adjust status and also apply for employment authorization and travel document.
One client, working as a Physical Therapist had asked us to file a similar downgrade application. Physical Therapists receive special treatment as they are one of the occupations that are pre-certified, which means that applicants do not have to obtain a labor certification from the Department of Labor.
The regulations provide for multiple I-140 filings but also refer to a certified labor certification which made many Attorneys Question whether a downgrade was even possible for a Schedule A case, because of the lack of certified labor from the Department of Labor (DOL). However, the way I read the regulations is that when one submits a Schedule A petition, they submit a completed ETA 9089 form to USCIS and by approving the I-140 USCIS is also certifying the ETA 9089.
However, since filing the Schedule A downgrade last year there were reports from other Attorneys that they had received denials or Notices of Intent to Deny (NOID). Therefore, the client was nervous that USCIS would deny the case or at least issue some sort of challenge either in the form of an RFE (Request for Further Evidence) or a NOID.
In March of this year, we received an RFE, which didn’t question the absence of certified labor from DOL, but did request that the applicant submits a prevailing wage determination, valid as of the time of filing the downgrade i.e. October 2020. It seemed that USCIS was trying to make it impossible for a Schedule A applicant to file a downgrade because clearly there was not another prevailing wage determination and the original one filed with the EB-2 application had long since expired.
In responding to this RFE I argued that the ETA 9089 form was certified by USCIS when they approved the original EB-2 filing and remained valid for filing a downgrade. Additionally, this included the original prevailing wage determination. I also pointed out that for other downgrade petitions i.e., non- Schedule A occupations USCIS does not request a new prevailing wage determination and in this case had not stated why one is required or on what basis. Furthermore, on what authority did USCIS have the power to treat Schedule A occupations differently from other regular EB-2 to EB-3 downgrades?
Schedule A occupations should receive more favorable treatment because they are pre-certified occupations, yet in this case, USCIS was attempting to do just the opposite. They were treating this Schedule A case less favorably, which clearly was not the original intent of Congress. I told the officer if they were going to deny this case, they would need to state with specificity the legal authority upon which a new wage determination was being requested.
Shortly after responding to the RFE, the client received approval! This was a great result and also the right result, but knowing how USCIS has a tendency to act inconsistently, it doesn’t mean that every Schedule A downgrade will be approved. If you have a similar case and have questions, please reach out to me at cprescott@patellegal.com