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
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
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
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.