How to File a Subsequent I-140 to Convert Visa Classification

more+
less-
more+
less-

“The waiting is the hardest part,” says the popular Tom Petty song. Well, the same is often true after you have filed the I-140 petition for an employment-based visa. In fact, in some cases, foreign nationals from specific countries – such as China and India – may wait several years before their priority date comes up.

The wait is always difficult, of course, but what can make the wait even more frustrating is when the priority date of a lower preference category surpasses the priority date of a higher preference category. For instance, Chinese nationals currently see a cut-off date for the EB2 category of December 8, 2008, whereas the cut-off date for the EB3 category is April 1, 2012.

In some cases, a foreign national may be eligible for more than one employment-based visa classification. In these cases, the applicant can file an I-140 in concurrent classification if he or she chooses. Alternatively, if the applicant already filed an I-140, he or she may wish to “retrogress” the application or, in other words, file a subsequent I-140 to change their visa classification from EB2 to EB3. Retrogressing is permitted by the U.S. Citizenship and Immigration Services (USCIS) provided that the applicant qualifies for both preference categories.

How Do I File a Subsequent I-140 Petition?

There are several things to keep in mind if you are considering filing a subsequent I-140. For instance, you should:

  • Make sure that you qualify for the other preference category.
  • Not withdraw the initial I-140 petition.
  • Submit a cover letter with the subsequent I-140 petition in accordance with immigration regulations that indicates the classification that you are seeking.
  • Provide a copy of the approved labor certification and inform USCIS that the original labor certification is attached to the previously-filed I-140.
  • Include the PERM number on the I-140.
  • Include all evidence of your qualifications for the position sought, including degrees, education, training, and work experience.
  • Include a copy of the EB approval notice, which will include the priority date and file number.

Topics:  EB-2, EB-3, I-140, Immigrants, USCIS, Visas

Published In: Immigration Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ronald Shapiro | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »