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December 9, 2013
Many employment based immigrants are exploring the possibility of converting their immigrant visa applications from EB-3 (employment based third category) to EB-2 (employment based second category).
This is due to the lengthy waiting time under the EB-3 category as compared to the EB-2 category. It is projected that the waiting time will not change in the near future.
As per the Visa Bulletin, there is currently a five year waiting time for those with approved immigrant petitions under EB-3 to apply for permanent residency. For those born in China and India, the wait times are longer at 7 years and 9 ½ years, respectively. Meanwhile, the Visa Bulletin shows only a two-year waiting time in the EB-2 category for those born in India and China – and no waiting time for those born in any other country.
Many have gone through the labor certification process and have approved I-140 petitions under the EB-3 category but are still in a holding pattern waiting for their visa priority date to be current.
They are exploring the possibility of having their employers file another petition for them under the EB-2 category with the goal of receiving their green cards faster.
But, is it possible to have another petition by the same employer for the same employee? The answer is “Yes.” It is legally permissible for the current sponsor or any other employer to file another immigrant petition for the employee.
There are several issues to resolve before starting on another petition for the same employee. First, is the employee qualified for an EB-2 position? Second, is the employer willing to start another petition? Third, is there a position available in the company for the position?
To be qualified for EB-2, the employee must have at least a US Master’s degree or its equivalent. Those with a Bachelor’s degree can also qualify for EB-2 if they have more than 5 years of progressive work experience. Keep in mind, though, that experience gained with the current employer/sponsor is not acceptable qualifying experience.
Converting the EB-3 process to EB-2 does not just involve filing a new immigrant petition (Form I-140). The process will start with filing a new labor certification application or PERM. This is because the new position will have new requirements that are different from the previous labor certification. When the new labor certification is approved, the employer/sponsor can file a new I-140 petition under the EB-2 category. The employer should inform USCIS that the beneficiary has a previously approved I-140 petition so that the old priority date will be applied to the new I-140 approval. This way, the beneficiary will further reduce his waiting time.
There are many pitfalls to avoid in converting the immigrant visa process to EB-2. It is best to consult an immigration attorney who will evaluate the beneficiary’s and the employer’s credentials to confirm they qualify to start a second process. Contact New Jersey immigration lawyers David Schmidt and Alan Lubiner at Lubiner, Schmidt & Palumbo, LLC to discuss your circumstances regarding employment based immigration by calling (844) 288-7978.