EB3 Green Card

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Changing from EB-3 to EB-2 Category

Detailed question:

I have my I-140 approved under EB-3 category, even though I have Masters Degree from accredited US University. Can I change it to EB-2 now?

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=sXq6DaDK7AA#t=472

FAQ Transcript 

The idea is once an I-140 is approved under any category EB-1/EB-2/EB-3 the priority date becomes the property of the employee. Whether the employee goes to work for a different employer or a different job completely or like a different job where you go from being a IT professional to a civil engineer you would still carry your priority date. This is not AC21.  AC21 requires same or similar job but that also requires I-140 approval, I- 485 pending for 180 days. This is not that case. The priority date transfer from EB-2 to EB-3 requires only the I-140 is approved. 

Hence the answer to the question is YES. If you get a job with the same employer or with a new employer that requires a masters degree or bachelors plus five year experience type of qualifications and your priority date will remain the same. The difference between AC21 and priority date carry over date is this: In AC21 you do not have to re file the green card. You can take the whole green card and take it over to a same or similar job if you’re I-140 is approved and I- 485 is pending 180 days. But in the priority date transfer you carry forward nothing. You only carry the priority date and it can be ported from EB-2 to EB-3/EB-1 to EB-2/EB2 to EB-1 it doesn’t matter. There is no requirement that the job that you are filing for is same or similar. That is the difference between AC21 and priority date transfer.

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Changing Jobs During Green Card

Detailed question:

I am still in the process of getting a green card. During this process I want to change my job from a present one to another one that is more challenging than the present one. Would this in any way affect getting the green card or is it advisable not to shift jobs now?

Answer:

 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?x-yt-cl=84359240&v=uaBshBiaCUg&x-yt-ts=1421782837&feature=player_detailpage#t=719


FAQ Transcript

In this scenario we have employment based people who are good workers, very skilled people and they have a lot of trouble changing jobs or advancing in their careers because technically while the green card is going on even if you take up a promotion you could end up losing your current green card and have to start all over again - at least part of the process. So this is not a good thing. 

Keeping in view with the current law what Obama had said on November 21st about his plan and finally what this bill (Immigration Innovation Act) says. 

First of all under the current law if you change your employers before your I-140 approval is obtained you will lose everything. You have to start all over again. That means if you are a EB-1 based candidate your I-140 must be approved. If you are an EB-2 or EB-3 based upon the labor certification your perm application must be approved and then you’re I-140 must be approved. Remember I-140 can be filed by premium processing. So you got to get your I-140 approved very quickly. Generally speaking if you move before I-140 is approved you get nothing. If you move after I-140 is approved but before I- 485 is filed you keep your priority date and you keep the right to extend H-1 beyond six years as long as the I-140 is not revoked. This is an important concept to remember. You keep your priority date - that means when you go to the next employer you will have to start the green card all over again but your priority date will be the date the first case was filed which again is a very big advantage. The priority date is capped but here is an additional provision. if your priority dates are current and you have filed I-485 with the old employer, after 180 days of the I-485 pendency and the I-140 approval you can take any job anywhere with any employer and be able to carry the same green card forward without having to redo any work. so before I-140 you get nothing, after I-140 and before I-485 you get your priority date and the right to extend your H-1 beyond 6 years and after I-140 approval plus I-485 filing 180 days thereafter you get the right to keep your green card even if you take a slight promotion with another employer or move to an entirely different employer as long as the jobs are same or similar. 

President Obama said normally applicant can only file the last step - the I-485 if the priority date is current. He said he would change that by allowing the applicant to file I-485 along with the I-140 no matter where the priority dates are. This is a big advantage. That means technically just roughly speaking once you start your green card process through PERM in a year and half you could be free to join any employer – proximately or two years at the most as long as you  maintain the job category you are in. President Obama also said he is going to make it clear that advancement in career is considered to be same or similar job so that your green card will not be disturbed. And that idea has been very welcomed. Combine that with the Immigration Innovation Act you could be getting your green card much earlier than 3, 4, 5....10 years that you are waiting for right now. So all these things combined are very good signs for people in a situation such as the query above. If you have not yet got your I-140 approved and you are far from that stage it’s ok as long as you don’t have H-1 problems. If you are about to get the I-140 approved then get it approved. If you have H-1 issues beyond six years make sure the second H-1 is approved before you change employers. Once the H-1 is approved for 3 more years even if the old employer revokes the I-140 they cannot take your right to the H-1 you already got. You can start another green card and protect yourself.

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Obama's Immigration Action - EB-3 Quota

Detailed question:

Does this impact EB-3 India wait times and also does this lift counting on family members/dependents for visa numbers /quota ?

Answer:

Obama's Immigration Action plan could impact all waiting time for EB categories. We are not clear how far or how quickly. There is no indication that the method counting green cards will be changed to One per family, instead of one for each family member in an employment-based case. President has asked for recommendations for improvement within 120 days. We shall see.

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EB-2 or EB-3

Detailed question:

I have two Bachelor's degrees from US universities. A 3-year Bachelor degree in Science and a 2-year Bachelor's degree in engineering. Will I be considered for a EB-2 visa with this? In case I don't qualify for EB-2, my dilemma is that, I have worked approx 4 years at my current job. Should I wait another year to file EB-2 or should I just file EB-3 now? Also, do internships qualify when counting the number of years of work after school?

Answer:

Internships do qualify as experience. You need to get your degrees evaluated under AACAO EDGE standards first .

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Contacting USCIS when EB-3 is Changed to EB-2

Detailed question:

How do I contact the USCIS Service Centers to inform that a priority date is current, that an EB case has been upgraded from EB-3 to EB-2, or that dependents have been separated from the principal applicant’s petition?

Answer:

Send an email to the Nebraska Service Center at NCSCfollowup.NSC@dhs.gov or the Texas Service Center at TSC.NCSCfollowup@uscis.dhs.gov.  Make sure to include the Case Number and A# of the beneficiary(s).  If applicable, attached scans of any notices for the USCIS to reference.

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Premium Processing for EB-1-3

Detailed question:

Has USCIS provided an update on premium processing for EB-1-3 multinational managers and executives. At the AILA conference in Nashville, it was reported that it would be available by the end of the fiscal year.

Answer:

USCIS does not anticipate expanding Premium Processing Service to include EB-1-3 multinational executives and managers for the foreseeable future.

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Professional Experience for EB-3

Detailed question:

I'm trying to apply EB-3 with skilled workers who have at least 2 years of experience. I worked with 1 firm for about 4 years after graduation. I would like to know all my experience from current firm does not count for my professional experience or not. And are there any alternative options to apply for green card?

Answer:

Usually, we cannot use the experience gained with the same employer who is applying for the green card, UNLESS the job being offered for green card is more than 50% different than the earlier jobs for that employer.

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Restart the green card under EB-2 category

Detailed question:

My Labour is filed in EB-3 & my PD is Oct-2003. I got my EAD in 2007. I have a BE degree from India & a work experience of 13 years. 5 in India & 8 in USA. Am I eligible for porting to EB-2? If I file a fresh EB-2 what is the process? Is it just the Perm process & I- 140 or do I need to file I- 485 again.

Answer:

People with over 5 years of exp. after a 4-year degree may be ale to restart the green card under EB-2 category and then port their PD. Basically, you are redoing the PERM and I-140 for an EB-2 level job.

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EB-3 to EB-2 with the same employer

Detailed question:

My PD is EB3 - Dec 2007. I have 3+2 years of education from India which is equivalent to US Bachelors. I have 3 years of experience before joining the current empoyer. Now I have more than 10 years of experience(including the experience with the current employer). I would like to know if I can apply again in EB-2 with the same employer using the experience gained from current employer.

Answer:

You can, if the job offered is more than 50% different than the job you were performing so far with the same employer.

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EB-3 category

Detailed question:

I am on EB3 category and have been working in the IT sector for the last 6 years and one year ago I completed my MBA too. I am currently working as a contractor and using my EAD. I am on Adjustment of status right now. Is it possible to change my category from EB3 to EB2?

Answer:

It is possible, but the green card will have to be started again from PERM.

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Job Change after I-140

Detailed question:

I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

Answer:

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

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EB3 to EB2 Portability

Detailed question:

My EB3 I-485 is pending with PD 06/2006. My company is willing to file the new EB2 as I have Indian equivalent Masters (3+3 years) and more experience as well as increased job responsibilities. Can I accept it and do the portability to get my EB3 PD? What is the minimum wage for EB2 category? Would my current company experience counts for new EB2 category? Any suggestions on the EB2 job responsibilities?

Answer:

Theoretically, this is possible. As to the practical implications, you must speak with the lawyers who will represent you in the second green card process.

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Can EB3 PD be carried to new EB2?

Detailed question:

I filed Perm under EB3 category on 1-Oct-2008. I got an audit. As per your current Perm dates, they are processing Aug'08 audits. Can I file with same employer under EB2? If yes, can I also keep EB3 file running parallelly. Is there a way for me to carry EB3 PD after I-140 Approval,if I file a new EB2? I completed 4yrs 2 months on H1B already. Please suggest me if I can change my employer now to file for EB2 or not. (If there is any way i can carry my EB3 PD for EB2 or not?). My lawyer said they can not change the current EB3 file to EB2 as they did not describe it for EB2 role.

Answer:

It is logically inconsistent for two jobs from the same company for the same individual. If you have a good, logical, true explanation, there is no law that says you cannot have two PERM apps for the same individual for different jobs with the same company. But you cannot transfer PD until the I-140 is approved. I see no issue with changing jobs right away. You may have just enough time.

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Changing to Skilled worker

Detailed question:

My current employer is my first job out of college. They placed me in the other worker category. Is it true that they cannot move me to a skilled worker category becuase this is my first job out of college?

Answer:

If the job requires a Bach. degree, you are entitled to the skilled worker/EB-3 category.

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My wife filed for Skilled Worker

Detailed question:

My wife filed for Skilled worker (EB-3(A)(i)). Can I apply for NIV to visit her?

Answer:

There is nothing in law that stops you from getting an NIV. But grant of visas like B-1/B-2 is completely discretionary.

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EB2 or EB3

Detailed question:

I have 7 years of experience with 3year bachelors degree + 2year masters degree from India.Job for which my GC is being filed is Bachelors degree+6yr experience. As per knowledge from different online sources 3year bach. degree+2year masters degree+5years progressive,post-masters exp.- Is considered as EB-2 Professionals with Advanced Degrees.My lawyer is saying since my bachelors(India)is a 3yr program & US bachelors degree is a 4yr program so my case falls under EB3 & not EB2. She also specified that under EB2 category the educational degree must be from a "single source" & not from combination of degrees.

Answer:

Generally speaking, if BS and MS are in the same or similar fields, you should be able to combine them to arrive at a 4-year degree for EB2 purposes. You should have a shot at EB2.

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EB3 to EB2 and I-140 Refile

Detailed question:

I have worked for Company A and got my labor certificate(Approved in May 2009) and I-140(Approved in Nov 2009 under Eb-3). But company A got acquired by Company B. Company B bought major part of the assets from Company A. Both companies do same kind of business. 1. The new company B is in same County and State(but different cities). 2. I Will be doing similar or same work in a similar position. 3. H1B transfered from Company A to Company B. 1) Can company B use Company A Labor certicate and refile the I-140 again? 2) Since Company A filed I-140 on EB-3, Can Company B refile I-140 on EB2?

Answer:

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

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EB2 from EB3 qualification

Detailed question:

I am currently petitioned under EB3 (for embassy interview already) but unfortunately is caught up with the retrogression. Can I apply for an EB2 visa? I have a Bachelor's degree (BSN), took up Medicine (equivalent of a master's degree in academe) and currently is a faculty/administrator in one of the top nursing schools in Manila, going on 5 years of service. I am likewise a PhD student (Major in Biology) in one of the top university also in Manila. Am I qualified for an EB2? If yes, is EB2 a family based peition? My parents live in New Jersey. Thank you.

Answer:

The term "EB" means employment-based. EB-2 is available for people with post graduate degrees (by US standards) OR a 4 years bach. degree with five years of progressively responsible experience. You need to speak with your lawyers about applying for an EB-2 and transferring your priority date.

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Watch out - the prioirty date cut off in March was effective immediately

Detailed question:

Answer:

The April 2009 Visa Bulletin was issued on March 9th. The VB said the visa numbers for EB3 were unavailable with immediate effect (Philippines retrogressed to 2003).

This is highly unusual. The visa bulletin is a forecast for the month ahead and does not take effect immediately. But State Department says that this one was of immediate effect.

What does this mean?

1. For people going through consular processing (instead of AOS), consulates with be able to issue immigrant visas only in rare instances where visa numbers were obtained before March 9.

2. Similarly, USCIS will not approve any adjustments unless the visa numbers had already had been obtained.

3. Cases filed after March 9th subject to "immediate effect" will most likely be rejected.

4. We do not yet know if USCIS will eject I-485's filed during March based on the March Visa Bulletin issued February 10, 2009, but it seems unlikely that they will.

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