Lang Wallace LLC Blog

Monday, January 20, 2014

EB-3 to EB-2 Upgrades: Reducing Green Card Wait Times By Years

Many of our readers are working in the United States pursuant to H-1B status, and have established their place in the green card line, by having an approved labor certification (PERM) application, and I-140 petition for immigrant worker. 

As you may know, employment based immigration to the United States is divided into preference categories, first, second, third, fourth and fifth. The three most commonly used employment based preference categories are: first preference (EB-1) category, reserved for aliens of extraordinary ability, outstanding researchers and multinational mangers; second preference (EB-2) category, for advanced degree workers and individuals working in the national interest; and third preference (EB-3) category, for professional, skilled and other workers. Click here for more information about EB-1, 2 and 3, as the well as EB-4 (religious workers) and EB-5 (investors).

For those foreign nationals with approved EB-3 I-140 petitions, the wait time for an actual green card could be five, six, seven years, or more! If you are in this group, it is important to understand the process of “upgrading” your case from EB-3, to a higher preference category. AN UPGRADE COULD SHAVE YEARS OFF YOUR GREEN CARD WAIT TIME. 

The Basic Requirements 

If you have an approved EB-3 I-140 petition and either your current employer or a prospective employer is willing to consider helping you file a SECOND labor certification (PERM) application, and I-140 petition, you may be eligible to upgrade from EB-3 to EB-2 AND retain your earlier priority date. Depending on your country of birth and earlier priority date, this process might even make you eligible for a green card immediately. 

The law confirms that the new job and employee must qualify. The job must require a Master’s degree or equivalent. Equivalency in US immigration law is defined as a four-year Bachelor’s degree followed by five years of progressive experience. This qualification, the Master’s degree or equivalent, must have been acquired BEFORE the foreign national starts working in the occupation which will form the basis for the new PERM and I-140 petition. 

Next Steps

For more information about upgrades please find additional details after the jump, including the benefits of re-filing, when an upgrade is appropriate, requirements, and frequently asked questions. If you have questions about the upgrade process, please contact one of our experienced immigration attorneys.  If you believe you are eligible for an upgrade right now, please complete and return our EB-3 to EB-2 worksheet (embedded at the end of this blog post) and contact us to schedule a consultation. 

The benefits of re-filing, when an upgrade is appropriate, requirements, frequently asked questions, and Ryvin Wallace Group's EB-3 to EB-2 Upgrade Worksheet: 

What is the Benefit of Re-filing? 

A second labor certification could be beneficial if it can be filed to qualify for a higher preference category (e.g., EB-2), especially if the higher preference category is now "current" for the employee's country of birth or chargeability. As an analogy, think of the preference category as a waiting line. Generally, the EB-2 preference category line has a shorter wait for the green card than the EB-3 preference category line.

Therefore, if two people set their places in line the same day, the EB-2 preference category individual is likely to be eligible to apply for a green card before the person in the EB-3 line. In some cases, filing a second I-140 will also enable the employee to recapture an earlier priority date. For labor certification based green card applications, the priority date is the date that the labor certification application is received at the Department of Labor. 

In order to be eligible for recapture of a priority date, an I-140 must be approved and the employee must experience a job change that justifies filing a second labor certification. To continue the above analogy, the priority date establishes an individual's place in the line. So, an individual who has an earlier priority date in the EB-3 preference category will be nearer the front of the line when compared to someone whose labor certification was just filed today. 

Therefore, recapturing an earlier priority date is advantageous because it allows an employee to retain the earlier priority date. If the employee is also upgrading from EB-3 to EB-2, he or she can step in to the EB-2 line with the earlier priority date established by the approved I-140 petition in the EB-3 category. There is no need to go to the back of the EB-2 preference category line.

When is a second I-140 Appropriate? 

Filing a second labor certification can 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 EB-3; (2) the employee qualified for EB-2 at the time he or she began working in the current occupation; (3) the company/employee’s manager approves EB-2 requirements; and (4) the employee has experienced an objective change in the terms of employment such that EB-2 qualifications are now required for the job. The objective change may consist of a promotion or a new work assignment that requires higher qualifications.

Requirements for the Employment Based Second Preference (EB-2) Eligibility

EB2 qualifications: A job will qualify for EB-2 if it requires (1) a Master's degree or (2) the equivalent of a Master's degree: 

(1) A Master's degree means a Master's degree granted by a college or university in the United States. A Master's degree also includes a foreign equivalent Master's degree, as determined by a credible educational evaluation written by a credentials evaluation service. 

(2) Under the applicable immigration regulation, the equivalent to a Master's degree must be a single-source, four year Bachelor's degree followed by five years of progressive experience in the field. A single-source, four year Bachelor's degree means a Bachelor's degree granted by an accredited institution of higher education after four years of undergraduate studies. Three-year Bachelor's degrees, a combination of lesser credentials, or certificates from a non-academic trade school do not qualify. The education and the five years of experience must have been completed before the employee started working at the Company in the occupation for which labor certification is sought. The application of these rules to an employee's credentials can be complex and requires careful, case-by-case analysis.

If an employee wishes to qualify for an upgrade from EB-3 to EB-2, the employee must meet the basic requirements for EB-2. In addition, in order to recapture an earlier priority date, the employee must have an approved I-140 naming him or her as the beneficiary. If the approved I-140 is revoked or withdrawn before the second I-140 is approved, there is no longer an earlier priority date to recapture. It is always risky to rely on an approved I-140 filed by a prior employer, because the prior employer can withdraw the I-140 without notice to the beneficiary. Of course, this is not a problem if there is no need to recapture the priority date.

Frequently Asked Questions 

Question 1: I was qualified for EB-2 when I joined my Employer. However, my first job did not require EB-2 qualifications. After my Employer obtained an approved I-140 for me based on my RIR labor certification, I was promoted. Am I eligible to be considered for an EB-2 upgrade and can I recapture my first priority date? 

Answer: Yes. The first I-140 was already filed at the time of the event justifying a new labor certification. Thus, 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).

Question 2: I was qualified for EB-2 when I joined my Employer. However, my first job did not require EB-2 qualifications. After my Employer filed a labor certification for me but before an I-140 could be filed, I was promoted. Am I eligible to be considered for an EB-2 upgrade and can I recapture my first priority date? 

Answer: You should be able to have a new labor certification filed for you that would qualify for EB-2, but you wouldn't be able to recapture the earlier priority date, since no I-140 was filed on the first labor certification. However, an EB-2 upgrade could still be beneficial if your preference category is "current" for example the "Worldwide EB2" category.

Question 3: What type of job change might make me eligible to be considered for an EB-2 upgrade? 

Answer: The types of job changes that could trigger EB-2 eligibility include a change in occupation, a promotion, an increase in scope of responsibility, acquisition of supervisory duties and/or addition of research responsibilities to your job duties. 

Question 4: Does it make a difference if my I-485 (application for adjustment of status or AOS) has already been filed? 

Answer: No. If your 1-485 has been filed, it may be possible to interfile the second I-140 into the pending I-485. 

Question 5: Can I recapture an earlier priority date if my previous employer had filed my I-140 petition before I joined my current Employer? 

Answer: It depends. If the I-140 filed by the previous employer has not been withdrawn, you may recapture the priority date. However, an employer may withdraw an I-140 without notice to you, the beneficiary. If the approved I-140 is withdrawn, there is no longer an earlier priority date to recapture. If the prior I-140 has been withdrawn, the immigration service would approve the second I-140 but the priority date would most likely be the date that the second labor certification was filed. 

Question 6: My EB-3 RIR was filed and then my current Employer filed an EB-2 PERM for me. Neither I-140 has been filed yet. Can I get the EB-3 priority date and qualify for EB-2? 

Answer: No. If you are going to be employed in the EB-2 job and an EB-2 I-140 petition will be filed, your current Employer cannot also file an I-140 in the EB3 category. The EB3 1-140 would not be truthful at the time it is filed. However, it may still be a green card benefit to have the approved EB-2 labor certification. 

Question 7: My EB-3 RIR was filed. Then my current Employer filed an EB-2 PERM and already obtained an approved I-140 in the EB-2 preference classification. My EB-3 RIR was recently approved. Can I recapture the EB-3 priority date?

Answer: No. Since you are going to be employed in an EB-2 job, your current Employer cannot go back and file an EB-3 I-140 petition. The EB3 I-140 petition would not be truthful at the time it would be filed. 

Question 8: My EB-3 PERM was approved and my current Employer then filed an EB-3 I-140 petition. After that, my job changed substantially. Am I eligible for an EB-2 upgrade and can I recapture the earlier priority date? 

Answer: You can file a second PERM application for the same occupation if the job opportunity has changed, even if the occupation code has not changed. However, the Department of Labor (DOL) will only allow a second PERM application for the same employer, same employee, and same occupation if it determines that the job opportunity is not the same. A DOL analyst will need to compare the two PERM applications to decide if the job opportunity is different. Thus, processing time for the second PERM application might be longer than usual, although based on our firm’s recent experience, some applications are certified in less than a month. If the job opportunity is determined to be the same, then it may be necessary to withdraw the EB-3 PERM (or have it cancelled by DOL) before filing the EB-2 PERM, and you will not be able to recapture the priority date. 

Question 9: I am in my 8th year of H-1B status. Does this affect my eligibility for an EB-2 upgrade? 

Answer: No. 

Question 10: I earned my four-year Bachelor's degree and have been employed by my current Employer as a Software Engineer for the last five years. I have an approved EB-3 I-140 petition. Am I qualified for an EB-2 upgrade?

Answer: No. Although you have now acquired more than five years of experience after your Bachelor's degree, you gained all of this experience at your current Employer in your current occupation of Software Engineer. You cannot rely on any experience you gained at the same employer in the same occupation in a labor certification. In order to qualify to be considered for an EB-2 upgrade, you must change to an occupation where there is less than 50% overlap of job duties in order to rely on experience you gained at your current Employer. 

Question 11: I joined my current Employer as a Software Developer and acquired my MBA while working as a full-time employee. My current Employer provided tuition reimbursement. My current Employer filed a labor certification for me as a Software Developer and I have an approved EB-3 I-140 petition. Now I have accepted a new position with my current Employer as a Marketing Manager. Am I eligible for an EB-2 upgrade now that I have a Master's degree? 

Answer: No. If your current Employer provided tuition reimbursement, the education you obtained (the Master's degree) cannot be used as a job requirement in your labor certification.

Question 12: My Employer obtained an approved EB-3 I-140 petition and then I was transferred to work for my Employer in a different location that is outside normal commuting distance from the first worksite. Am I eligible for an EB-2 upgrade?

Answer: You will need a new labor certification because the first labor certification is valid only for the specific geographic location. If your job has changed since the first labor certification was filed, and you are qualified for EB-2, you may be eligible for an EB-2 upgrade. The need for a new labor certification provides a good opportunity to evaluate your situation to see if the job has changed and if you are qualified for an EB-2 upgrade.

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