MurthyChat FAQ: Timing for Selection of EB2 and EB3 Categories

Many of our readers participate in the popular, weekly MurthyChat, one of the free online services offered by the Murthy Law Firm. They may also search past chat transcripts for answers to their own questions. The chat reflects questions that are on the minds of many of our readers. This article expounds upon a question received in Monday’s MurthyChat (11.Oct.2010) session, regarding the selection of the EB2 or EB3 category.

Question: When is EB2 mentioned in the GC process?

At what stage of green card filing do we have to mention whether the case is going to be filed in the EB2 category or the EB3 category? Do we have to mention EB2 when filing the labor certification itself, if that is the desired category?

Answer: Proper Planning Starts at the PERM/LC Stage

The labor certification, or PERM, in the processing of an employment-based, permanent resident (“green card”) case is like building the foundation for a home. If there are to be three bedrooms on two floors, then the foundation must be planned accordingly. Similarly, at the PERM/LC stage, the requirements for the job offered and the education and/or experience required for the job determine whether the case will fit within the EB2 or EB3 category. This therefore is based on the minimum qualifications listed for the position. The U.S. Citizenship and Immigration Services (USCIS) determines the EB2 or EB3 at the I-140 stage, when issuing the I-140 approval notice.

Form I-140 has checkboxes for the petitioning employer to request the appropriate category. However, this selection is not simply based on one’s preference. The selection is dictated by the job requirements, in terms of education and experience, according to the minimum requirements for the position set forth in the PERM/LC. Thus, if the minimum requirements for the job set out in the LC fall within EB3, the I-140 must be filed in the EB3 category.

Any changes in the position must be made in a new LC filing. If one is promoted and wishes to use the new position as the basis for the GC case, a new LC filing is needed; it is not possible to make such changes at the I-140 stage.

It is understandable that individuals born in India and China wish to file under the EB2 category, so they may get the green card more quickly. However, the category of LC-based green card cases is determined by the minimum requirements for the job, as determined by the employer and by the industry as a whole. It is not enough to look at one’s own degrees and/or experience. The starting point must be the job requirements. Of course, the foreign national must be able to demonstrate her/his qualifications for the position, in terms of education and experience, in order to seek USCIS approval of the I-140. A case with a problem in this area is discussed in our article, Murthy Success Story: Approval of I-140 Based on Similar Field of Education (15.Oct.2010).

Conclusion

As with many aspects of the immigration process, there are frequently misunderstandings regarding the path to the green card. At the Murthy Law Firm, we often are approached when individuals receive denials in EB2 cases due to lacking a single-source, four-year relevant degree and other issues. These denials often arrive after years of waiting time, and significant expenditures. It may be more prudent to be safe and file a strong EB3 case, obtain the approval and then work toward establishing a proper basis for a later EB2 case. The earlier priority date could potentially be transferred later to a fresh EB2 case, if the new job’s minimum requirements allow for such a filing and one otherwise meets the criteria. Those considering initiating LC cases should seek qualified immigration counsel, who can guide them through the process.