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