Newer Version of Form I-140 & the EB3 Category23 Jul 2010
There have been some reports of an issue with some EB3 I-140, employer petitions. This is the result of a new version of I-140 form, dated January 6, 2010. This new version requires the petitioning employer to make a distinction in the category selected when filing the form. This was not necessary in earlier versions of the form. This matter, as is explained below, involves the EB3 category.
New Form Requires Selection of Proper EB3 Category
The most recent version of the I-140 form contains nine choices of category in part 2 of the form. One choice is “reserved” and does not reflect an actual option that can be selected at this time. This most recent I-140 (PDF 291KB) is available on the U.S. Citizenship and Immigration Services (USCIS) WebSite. Access to all USCIS forms is available through MurthyDotCom‘s forms page.
The I-140 has one important difference for EB3 cases. The new version requires the petitioner to distinguish between an EB3 filing for a professional versus an EB3 filing for a skilled worker. Older versions of the form had only one box for both of these two subcategories.
EB3 Professional vs. EB3 Skilled Worker
Since the new version of the form requires a distinction between an EB3 professional and an EB3 skilled worker, it is important to understand the definition of professional. This term is defined in the applicable regulations as a foreign national who holds at least a U.S. baccalaureate degree or a foreign equivalent degree, and who is a member of the professions.
According to reports from the American Immigration Lawyers Association (AILA), the Nebraska Service Center (NSC) is reviewing EB3 I-140s strictly. There have been reports of denials if the EB3 professional category is selected, but the beneficiary does not have a “United States baccalaureate degree or a foreign equivalent degree.” The term “foreign equivalent degree” means a degree which, by itself, without considering experience, is the equivalent of at least a U.S. baccalaureate degree. It is not sufficient for the individual to have a combination of education and experience that is equivalent to a U.S. bachelor’s degree. The skilled worker category, as explained below, only requires an individual to have at least two (2) years of prior work experience or training and the job must require the two years of work experience or training.
Possible Option to Select Skilled Worker Category on Form I-140
The solution for those cases that do not meet the EB3 professional category is to select the EB3 skilled worker category. As explained above, a skilled worker is defined as appropriate for a job that requires at least two years of work experience or training. Since there is no difference in visa number availability or backlogs between the two subcategories of EB3 for a professional or an EB3 skilled worker, the use of this category should not create any disadvantage.
Should Not Check EB3 “Other Worker” Category
This is not to be confused with the EB3 “other worker” category for workers with less than two years of experience or training. The other worker category is treated differently with respect to visa number allocations. The waiting period for the other worker category is far more backlogged than the EB3 category for a professional or a skilled worker.
If the wrong category was selected on the I-140 form, by checking off “professional” when the sponsored foreign national may be a skilled worker; it is possible to re-file the case correctly by selecting the skilled worker category for EB3. This is often the easiest solution, and it is permissible even if the underlying labor certification has expired, as long as the first I-140 petition was filed before the expiration of the labor certification. Employers reviewing I-140 petitions may want to note this issue for employees who do not appear to meet the degree requirements for EB3 professional.
This recent problem emphasizes the importance of the many details and nuances in immigration filings. The distinction between the EB3 professional and skilled worker was often blurred in the past, as they were combined on the I-140 form as well as in visa number quotas. It is now necessary to categorize EB3 applicants properly to avoid an I-140 denial and often a delay in the approval of the case. Employers who have questions should discuss the issue with a knowledgeable immigration law attorney. Those without an attorney are welcome to consult with us at the Murthy Law Firm on I-140 petition problems. Our firm is honored to help employers and employees achieve their goals with respect to U.S. immigration law matters.