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Tuesday, August 16, 2011

San Francisco Immigration Lawyer Q & A: Upgrading a green card case from EB-3 to EB-2 and shaving years off green card wait time

Question: I have 13 years of teaching experience, before moving to the US. My employer filed my Labor Certification (PERM) application and I-140 under the EB3 category with a priority date in 2009. Now, I am planning to port from EB3 to EB2. Is this possible with the same employer? My previous lawyer did not include my 11 years of experience. He just put my 2 years of experience in China. Also, what would happen to my eldest daughter, who will turn 21 in a couple of years, if I just wait for my 2009 priority date to become current?

Answer: Your current employer may indeed file a new PERM with EB-2 requirements, but not only do you have to be qualified, the position offered must also qualify. Filing a second labor certification with the same employer might be appropriate in several situations. A change to a different occupation classification as defined by the Department of Labor is one event that would require filing a second labor certification. In addition, a second labor certification might be justified when (1) the first labor certification was an EB3; (2) you qualified for EB2 at the time you began working in the current occupation; (3) your manager approves EB2 requirements; and (4) you experienced an objective change in the terms of employment such that EB2 qualifications are now required for the job. The objective change may consist of a promotion or a new work assignment that requires higher qualifications. Finally, as long as each I-140 would be accurate at the time of filing. You are entitled to the earliest priority date under the regulation 8 CFR 204.5(e).


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