Considerations for EB3 to EB2 “Upgrade”04 Feb 2014
As evidenced from the inquiries we receive at the Murthy Law Firm, there are many individuals who are interested in the possibility of what is referred to as “upgrading” their permanent resident (commonly, “green card”) cases to employment-based, second preference (EB2). This strategy is used following the approval of an I-140 petition in the employment-based, third preference (EB3) category. There are potential advantages to this strategy; however, it is always advisable to speak directly with an experienced and qualified immigration attorney to discuss your particular circumstances before deciding how to proceed.
EB3 Historically Slower than EB2
Historic observation of the monthly U.S. Department of State visa bulletin reveals a substantial difference between the EB2 and EB3 categories, particularly for India. Since December 2011, EB2 India has fluctuated between September 1, 2004 and May 1, 2010, before retrogressing again to the November 15, 2004 cutoff date, as of this writing. Meanwhile, EB3 India has slowly advanced for the same period, from August 1, 2002 to September 1, 2003. While the significant fluctuation in EB2 India priority date movement since December 2011 is not historically typical, the EB2’s faster movement is.
In the most recently completed fiscal year 2013 (FY13), starting on October 1, 2012, EB3 India began with a cutoff date of October 15, 2002. After about eleven months, by August 2013, this cutoff date had moved a little over three months, to January 22, 2003. This delay is compounded further over a longer period of time. Alternatively, in FY13 (October 1, 2012 to September 30, 2013), EB2 India moved forward by almost four years, from a cutoff date of September 1, 2004 to a cutoff date of January 15, 2008 (before retrogressing to November 15, 2004 in December 2013.)
As more and more individuals take advantage of the ability to “upgrade,” we may potentially see more advance movement in EB3 India and slower movement in EB2 India. However, at this time, there is no evidence of such a shift.
EB3 Shift for Those Born in Mainland China
Summer 2013 saw a shift in the paradigm of EB2 vs. EB3 priority date movement, for those born in mainland China. Since October 2012, both EB2 and EB3 China have slowly advanced, but EB3 China has steadily advanced at a greater rate. This resulted in a shift in the July 2013 Visa Bulletin, in which EB3 China overtook EB2 China. Currently, the February 2014 visa bulletin lists EB3 China with a cutoff date of June 1, 2012; meanwhile, the cutoff date for EB2 China is January 8, 2009. Therefore, some individuals from mainland China may want to consider the opposite strategy of “downgrading” their visa petitions to EB3 to take advantage of this historical change.
Who Can “Upgrade” from EB3 to EB2?
For many EB3 visa applicants, the wait is unavoidable. Some employment-based immigrant visa applicants, however, may qualify to change to EB2, having obtained over time advanced degrees, additional job experience, and job offers that satisfy the requirements for EB2 filings. [See also MurthyDotCom NewsBrief, “Exceptional Candidates May Qualify for EB2 Without Advanced Degree (26.Aug.2013) for a discussion of how to potentially move to the EB2 track without the need for obtaining an advanced degree.] This typically would come with an increase in the complexity and sophistication of one’s job duties and a commensurate increase in salary.
A shift to EB2 does not actually upgrade the previously filed labor certification (LC) and I-140 petition. This process requires the filing of a new LC and related I-140 petition requesting EB2 classification. However, the obvious benefit is a potentially accelerated path to eligibility for filing for adjustment of status to permanent residence (form I-485), using the EB2 category. The strategy involves requesting retention of an earlier and more favorable priority date, which is possible in cases with an earlier-approved I-140 petition.
Interfiling New EB2 I-140 Approval with Pending I-485
Many EB3 green card applicants have approved I-140 petitions, as well as I-485 applications in the queue that were filed during the summer of 2007, when all EB categories briefly became current. For applicants with pending I-485 applications, the usual strategy in a case shifting from EB3 to EB2 is to request interfiling for the new, approved EB2 I-140 petition (with the retained priority date,) into the pending I-485 with the U.S. Citizenship and Immigration Services (USCIS). Thus, the old EB3 I-140 petition is replaced with the new EB2 I-140 approval, while keeping the earlier priority date. This allows for approval of the I-485 application, if the retained priority date is current in the EB2 category.
Filing I-485s When Priority Dates Become Current
EB3 applicants who did not have the opportunity to file the I-485 during the summer of 2007 typically have only reached the stage of having the I-140 approval in their earlier EB3 cases. In this scenario, moving to a new EB2 I-140 petition carries with it the potential option for the individual and eligible family members to file their I-485s for adjustment of status, if their immigrant visa priority date would be current in the EB2 category.
Applicants who have not filed their I-485 applications generally will want to submit priority date retention requests to the USCIS with their EB2 I-140 petition filings. When a retention request is confirmed, and the new I-140 is approved with the earlier priority date, the I-140 beneficiary and eligible family members can move forward with the I-485 filing with the USCIS when the I-140 retained priority date becomes current in the EB2 category.
With the slow movement of priority dates, it is common for EB3 green card processing to take longer than one’s own career may take to advance. Fortunately, the law provides a mechanism for those who qualify for and have obtained job offers that require EB2-level requirements, in order to fast track their paths to permanent residence. Those who may qualify for this approach should discuss the option with an experienced, qualified attorney. At the Murthy Law Firm, our attorneys have experience in this area and have successfully processed many such cases.
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