EB3 to EB2 upgrade issues

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In recent issues of the ImmInfo Newsletter, we have discussed upgrades from employment based third preference (EB3) to employment based second preference (EB2). The text of a recent article can be found by clicking here. To read more about how the USCIS defines the term “advanced degree” please read this article. This issue is important because many people misunderstand the EB2 requirements.

Let’s deal with some of the more frequently asked questions concerning these types of upgrades.

Q: Can I keep my EB3 priority date if I upgrade?

A: Yes you can. For more detailed information about the rule governing this issue, read this article.

Q: Does this rule still apply if I change employers or preference classifications?

A: Yes it does. An applicant who receives an I-140 approval is entitled to use that priority date for any job, with any employer, in any preference classification when the same or a new employer files a subsequent I-140 petition on the applicant’s behalf.

Q: What happens if the sponsoring employer withdraws the I-140 before I can file a new one?

A: Once an I-140 is approved, the priority date is locked in for that applicant forever. If an employer withdraws the I-140, the applicant can still use the priority date established by the withdrawn I-140 at any point in the future.

Q: How long will it take to upgrade?

A: That is a good question. No one knows how long it will take to process a PERM application filed in the next few months. Some believe that PERM processing is going to speed up, others feel that it will slow down. We are telling our clients to expect about a year, but no one can give an estimate with any degree of certainty.

Q: What factors should I take into account in making a decision to upgrade?

A: First consider the time involved. How much time will you likely save by upgrading? If you are an Indian EB3 with a priority date later than 2003, then an upgrade will save you years of waiting. On the other hand, if you have a priority date that is relatively close to being current, then there isn’t much point. Next, consider the cost. How much will it cost you to upgrade verses how much will you save by getting your green card faster?

Q: I have a pending adjustment of status application on file that is based on my EB3 I-140. Will a new I-140 force me to abandon that application.

A: No, absolutely not. The two are entirely separate matters. If you want to upgrade, you may do so without doing any harm at all to your pending case. If the new PERM or I-140 is denied, that will have no effect on your pending case. Similarly, if your new I-140 is approved, that fact will not adversely effect your pending case either.

If you are interested in discussing upgrading from EB3 to EB2, please call our office (818-914-6482) and set up a convenient time to discuss your case. We do not charge for talking to people about possible representation.