Upgrading to EB2: what happens to the old petition?
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As green card applicants evaluate the EB3 wait times and consider whether they should upgrade to EB2, many ask “what will happen to my old (EB3) petition?” The answer is, in most cases, nothing. A pending adjustment of status application, based on an EB3 petition, will continue to be processed by the USCIS if the applicant subsequently files a new application based on an EB2 petition.
Unless the applicant asks the USCIS to substitute the
new (EB2) petition in place of the old (EB3) petition, the two will be
processed concurrently. In most instances, the USCIS will not allow such
substitutions.
As a practical matter, a new EB2 petition means a new I-485 adjustment of status application or a new consular immigrant visa application abroad. In such cases, the old EB3 based adjustment of status application will continue without interruption.
Many people mistakenly believe that when the new petition is filed, and the old priority date recovered from the first I-140, this somehow voids the first I-140. This is simply not true. The law provides for the recapture of the first established EB priority date for all subsequently field I-140 petitions. It does not, however, require the voiding of the old petition.
An employment based applicant may have numerous I-140 petitions filed and approved at the same time. Likewise, the same applicant may file numerous I-485 and/or consular processing applications at the same time. Filing a new petition or application does not void the old one.
As a practical matter, the smart thing for someone with an established EB3 priority date to do is have an employer file a new PERM that requires an advanced degree. Once the PERM is approved, file a new I-140 and capture the priority date from the existing EB3 petition. The pending EB3 I-140/I-485 will continue to be processed by the USCIS while the new I-140 is approved with the old priority date.
The key here is to designate consular processing for the new petition. That way, the National Visa Center can begin working on the case while the priority date is still unavailable. When it becomes available, the applicant will be scheduled for a final interview overseas within 60 days of the first day that his or her priority date is actually “current.”
Since the “old” EB3 based I-485 remains on file, the applicant for an EB2 visa through consular processing will retain his or her EAD and advance parole from the earlier filed AOS application. This is the best of both worlds: interim benefits and faster processing.
