Sunday, February 17, 2013

FAQ: EB3 To EB2 Porting - Part 1

Q. Can EB3 application simply be changed to EB2 application?
A. Often individuals ask whether their current EB3 cases can somehow be converted to EB2s. They will usually mention that they had enough education and/or experience to meet the EB2 requirements at the time the EB3 case was filed. The answer to this is simply, “No.” The EB category of any labor certification-based case is set at the beginning, when the labor certification is prepared and filed. The category depends on the requirements specified in the labor certification. If these requirements are at the EB3 level, then the case is filed as an EB3, even if the foreign national beneficiary may have qualifications in terms of the education and work experience sufficient for an EB2 level job.


Q. Can we file new EB2 Case Based on Minimum Job Requirements
A. It is possible for an individual with an EB3 case to have either the existing employer / sponsor or a new employer file a new case in the EB2 category. Of course, the new position must meet the EB2 requirements, and the individual must qualify for the offered position. The starting point must always be with the job requirements, not one’s own education and experience. It is the job that must fit within the EB2 category, as the law requires that the employer specify the minimum education and other qualifications for the specific job. Then, of course, the beneficiary must be able to establish that s/he meets the education and experience required for the job.

Q. Is new EB2 Filing Permissible with Job Change?
A. It is not unusual for an individual with an EB3 case to qualify for EB2. This happens when one acquires additional education and/or experience through the years during which the EB3 case has been pending. Over time, people often are promoted into jobs that may meet the EB2 requirements.
 

Typically, questions about potentially changing to EB2 come from individuals who have reached the point where they have filed their I-485s. They have waited for a number of years, but are suffering under the enormous waiting times in the EB3 category. Many have used AC21 to change jobs, are advancing in their careers, and now hold jobs that could meet the EB2 standards.

Q. Should EB2 Filing be with Existing or New Employer?
A. As explained above, in order to move from EB3 to EB2 it is necessary to start over with an entirely new labor certification. This often is filed through a new employer, when an individual has moved to a different job.
 

It potentially could be filed through the same employer that filed the EB3 labor certification. This could be appropriate if one obtained a promotion or otherwise moved into an EB2 job. If filing through the same employer, the employee ideally should have completed the minimum years of work experience for the EB2 position before starting work with the current employer. 

This is because there are legal issues and potential restrictions when relying on the experience gained with the same employer to qualify for the new job. These issues should be analyzed and discussed with an attorney experienced and knowledgeable immigration law.

Q. Can we transfer Earlier Priority Date to New Case Filing?
A. The greatest benefit to utilizing the strategy of re-filing comes in the potential to retain the priority date from the EB3 case. This option exists if the EB3 I-140 petition has been approved. If so, then it is possible to request retention of this priority date in the later-filed EB2 case. This means that it potentially is possible to transfer the earlier EB3 priority date to the later-filed EB2 case with a new or the same employer. In many cases, this means that the individual could have a current or closer-to-current priority date, thus saving many years of waiting to become eligible for permanent residence.
 

There are some issues with respect to retention of the priority date if the I-140 has been revoked. Generally, however, it is the policy of the USCIS to allow the retention and transfer of the earlier priority date if the I-140 petition has not been revoked by the USCIS for fraud or misrepresentation.
  
Q. Is Earlier EB3 Filing Made Vulnerable by Filing New EB2? 
A. Most people inquiring about this option are concerned about any potential risks to their current EB3 cases. There are some procedural options with respect to the final step in the re-filed cases. However, it is possible to process the new case without risk of disruption to the EB3 case. This assumes that all information provided in the course of the prior filing was accurate. 
 
A new labor certification filing, even if not approved, would not disrupt a prior approval. The same holds true for an I-140 filing. Conversely, approvals of the labor certification and I-140 do not disrupt or displace existing approvals. It is possible to have multiple approvals of labor certifications and I-140s for the same individual. Even when the request to retain the earlier priority date from the EB3 case is granted, the prior EB3 case remains undisturbed. There is nothing transferred or taken away from the EB3 case in the process of requesting that the EB2 case be assigned the same priority date.
 

 
At the final stage, there are options as to how to complete the case. The pros and cons should be discussed with a qualified immigration attorney. It is possible to proceed with the cases essentially in parallel, allowing for two cases and two potential avenues for eventual approval of permanent residence. The best way to proceed depends upon one’s situation and, ideally, should be analyzed to consider the risks and options. What is helpful to most people, however, is that they do not have to risk their current EB3 cases to try to move to EB2.
 


Continue to part 2: http://topimmigrationnews.blogspot.com/2013/02/faq-eb3-to-eb2-porting-part-2.html

16 comments:

  1. Hi I've been reading this site for awhile, and I have to say this is very useful! Thanks and keep up the good work. I have some questions I hope you can answer.

    1) I am currently EB3ROW (Singapore) with priority date 12/10/10. If it was possible to port to EB2 with a new employer, you're saying that I can retain my priority date if my new employer agrees to file me under EB2 correct?

    I was always under the impression that if I were to change employers I would have to start my green card process from scratch, but from what you're saying, it's possible to retain the priority date as long as my new employer files me under EB2?

    2) It looks like the EB3 row July predictions are Feb 15, 2009. Any chance that the upcoming months this will continue to move at the fast pace it's been moving, or is there a good possibility of retrogressing?

    3) Regarding the I-485, this is applied once my priority date becomes current correct? What is the average processing time from when it is applied to when I finally get my green card? I heard it's different for different locations, I would hate to have to wait another 8 months from the time I become current to getting my green card, is this a possibility?

    4) The reason I'm asking is because I'm at a crossroads, I'm thinking if I should leave my job and get an MBA and then subsequently get an employer to file under EB2, or try and apply to another company without a master's degree with another company and hope they file under EB2 (much harder)

    Thanks so much!

    ReplyDelete
    Replies
    1. Thank you for the kind words.

      1. If you switch employers, you have to start the process from scratch. However if your I-140 is approved at previous employer, then you can retain the old PD.

      2. If USCIS receives enough applicants to fill the quota, it would stop moving forward. Based on current data, it could most likely move forward very slowly in August and September VB.

      3. Once I-485 is filed, the average processing time is between 4 and 8 months (depending on service center). Please see this article:
      http://blog.mygcvisa.com/2013/04/how-to-file-i-485-application.html

      4. You also have an option to stay with current employer and try to upgrade to EB2. There are few restrictions by USCIS in this scenario (though few have done it successfully).

      Delete
    2. Thanks for your reply. Regarding question 1, my I-140 has been approved since 6/14/2011. So you're saying if I start at a new employer, I'd obviously have to make sure that they would sponsor my green card again, this process from when I start work to when they apply for the green card again, would there be a significant delay? So let's say it'll take 2 more years until my priority date becomes current with my current employer, if I switch to a new employer, will it also take 2 more years, or will there be delays? This is provided my I-140 is approved and I switch jobs without a break in between.

      Thanks again!

      Delete
    3. Q. this process from when I start work to when they apply for the green card again, would there be a significant delay?
      A. GC is for future job. Your new employer can file for you even today (even if you have not joined them yet but are planning to). They can file it on your first day or after few years. It fully depends on your employers when they want to start the process.

      Q. So let's say it'll take 2 more years until my priority date becomes current with my current employer, if I switch to a new employer, will it also take 2 more years, or will there be delays?
      A. Your new PERM and I-140 application would take around 6-9 months to process. After that you will have to wait for PD to be current.

      Delete
  2. Also regarding question 3, I did read through the link, how do you know whether or not your green card will be filed in NSC or TSC? I know it's 4 months in NSC and 8 months in TSC, is it possible to choose NSC instead of TSC? My employer will probably be filing in California, however there's a possibility that this might be filed in New York. Does one location matter over the other? Thanks very much.

    ReplyDelete
    Replies
    1. Applicants cannot currently choose which service center to file I-485 application. Else almost everyone would select the one with shortest time.

      You or your lawyer would send it to the correct dropbox and USCIS will route it to the correct service center.

      According to latest I-485 processing statistics, USCIS is trying to equally distribute load in both service centers. Please see link below for details:

      http://blog.mygcvisa.com/2013/04/uscis-i-485-i-140-processing-statistics.html

      Delete
  3. WHAT DO YOU MEAN BY EB2 AUDIT? WHAT IS THAT?

    ReplyDelete
    Replies
    1. Audit is when they ask for more details from the employer.

      Delete
  4. Very clearly explained. Thanks at ton for posting this.

    ReplyDelete
  5. Hello, thanks so much compiling all this information. It is incredibly useful. Appreciate your taking the time to benefit others.

    I have one question. I am currently on EB3 with approved I40 for the past 6 years. I now have an opportunity to move to a role that qualifies for EB2 with the same employer. Will I be able to port my priority date once the EB2 LCA & I140 are approved?

    Please advise.

    Thanks!

    ReplyDelete
  6. Hello, thanks so much compiling all this information. It is incredibly useful. Appreciate your taking the time to benefit others.

    I have one question. I am currently on EB3 with approved I 140 for the past 8 years. I have now an opportunity to move to a role that qualifies for EB2 with the same employer. Will I be able to port my priority date once the EB2 LCA & I140 are approved? could anybody can give the advise please. my labour priority date is October 2008. I am waiting for possible answer.

    ReplyDelete
  7. Hi Sir,

    My Ex-Emp applied My I-140 EB3 & I-485 in July 2007.

    My Current Emp applied new Labor , I-140 in EB2 and approval for I-140 EB2 in 2012.

    But GC is not approved even India EB2 become current in 2013 and as well as July 2014.


    Here my is .. what is exact processor for
    EB3 to Eb2 porting.

    I sent my I-485 notice & I-140 EB3 & EB2 approvals to USCIS office. but I didn't get any confirmation from them

    ReplyDelete
  8. Hello, thanks so much compiling all this information. It is incredibly useful. Appreciate your taking the time to benefit others.

    I have one question. I am currently on EB3 with approved I40 for the past 6 years. I have obtained masters degree from US university last year..... My company is thinking about promoting me to a higher post with additional job duties that qualifies for EB2.
    can i accept the promotion and while staying eb3 or i can apply for eb2?

    ReplyDelete
  9. Hi, My employer filed an EB3 petition (Country: Philippines) for me on May 2014. Due to the massive retrogression, I am still awaiting for my priority date to be current again which is really a few years away. I am trying to convince my employer to switch and refile a new petition under EB2. However I am getting a few excuses and various inconsistent reasons from them. So I have one question for you:

    1.) Is there an official website that the USCIS or Dept. of Labor uses to determine the minimum salary for a certain type of work (Ex: Civil Engineer in a certain County, State, etc).

    ReplyDelete
  10. I agree to a certain extent. People who come to work can contribute and improve society in a number of ways

    Canada Points System

    ReplyDelete
  11. Hi, when I was in India eb3 schedule A applied in 2006 by company A from usa.Pd for eb3 is sep.2006.for india.i am canadian citizen now.company A sold to company B. I want to do eb2 as I qualify but through company C.will company B that bought company A that filed i140 in 2006 can stop me doing eb2 with company C or no?
    I never worked for company a b or c and never worked in usa



    ReplyDelete

Comment Posting Tips:

1. To estimate when priority date can be current, please see this GC Calculator: http://www.mygcvisa.com/calculator

2. View or add your I-130/I-485/NVC case to GC Tracker: http://www.mygcvisa.com/tracker

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