Bhagwati & Associates, PLLC.: Can I move from EB3 to EB2; a perplexing question ...

Bhagwati & Associates, PLLC.: Can I move from EB3 to EB2; a perplexing question ...: Reasonably paced EB2 for past few months has lead many sitting under the umbrella of EB3 for almost a decade to think if there is any pos...

Can I move from EB3 to EB2; a perplexing question fighting many

Reasonably paced EB2 for past few months has lead many sitting under the umbrella of EB3 for almost a decade to think if there is any possibility to file another PERM under EB2 category retaining the EB3 priority date and jumping on to a fast moving EB2 bandwagon. By no means can this be deemed as unreasonable thought as there are options for those who can qualify for EB2 category.

Our office has been contacted overwhelmingly by significant EB3 category holders wanting to know if there are any prospects that can help them see light at the end of the tunnel by filing PERM under EB2 and retaining EB3 priority dates. We do understand the pain inflicted by exponentially slow moving EB3 process on those who have I-140 approved and know will have to sit tight for multiple years before they can step forward to adjust the status, or on those who have filed for adjustment and are just waiting for the doors to open. The salt on the wound is added when they are living with a fear that they can’t travel out of USA to see their long awaiting families because without either Advance Parole or visa they may not come back as US Consulates have been denying visas at ease for reasons such as lack of Employer- Employee relationship and/or Employer’s Direct Right to Control. The innocent couldn’t have asked for any more agony. I would want to make it simple for all grappling to find the right answer.

If you have PERM and I-140 approved under EB3, It is possible that you may qualify for EB2 if you acquired additional education and/or experience during years when the EB3 has been pending. Due to better performance on the job, you may have been upgraded to a next level that may help you meet EB2 requirements. This is pertinent to note that EB3 can have either his current employer or new employer sponsor new application under EB2 category. It thus leaves a little larger ground to play with as the restrictions don’t apply only to existing employer. However, it must not be forgotten that the new position and individual with EB2 sponsoring employer (existing or new employer) must meet EB2 requirements. Individual must have requisite education and experience required for this new EB2 position. It is very important to analyze the EB2 requirements for the new position because a slight variation from EB3 position can severely impact the success of entire process. It is strongly recommended to seek consultation of experienced Immigration Attorney having experience in this area. It is important to note that new filing under EB2 is prerequisite for one to become eligible to request USCIS to retain EB3 priority date after EB2 gets approved meaning EB3 case holders cannot move to EB2 without having filed new case under EB2 category.

EB2 can be successful with the existing employer if the EB3 holder was eligible for EB2 prior to the date he/she joined the EB3 sponsoring employer. Experience with the EB3 sponsoring employer may not be used as that will conflict with the EB2 requirements when EB2 is filed by the existing employer. In the event, EB2 case gets approved, USCIS can then be requested to transfer the EB3 priority date to the newly approved EB2 case whether it was sponsored by existing or new employer. This would require I-140 approval from EB3 case in order for USCIS to transfer the EB3 priority date to EB2 case. In the event, I-140 was revoked, USCIS would deny the request. This process of seeking a transfer is detailed and necessitates very careful insight of law, its application and mandatory procedural issues. At this stage when EB2 is approved, the process must be handled very carefully to ensure the path to success continues. New EB2 process does not adversely affect the approved EB3 case and similarly is not affected by EB3. These are two independent cases that can be maintained in parallel.

Each case must be carefully examined based on its facts before a case is subjected to new EB2 filing as every case resides on its own facts and must not be weighed on the irrelevant facts. It is thus important to note that process of transferring EB3 priority date is very delicate and complicated and must be undertaken in consultation with experienced attorney to get benefits as desired.