What Can I Do If EB3 Priority Has Surpassed the EB2 Availability?

by Ronald Shapiro

Employment-based visas have five difference preference categories based on the position sought and the applicant’s qualifications. For instance, the EB2 category is available for professionals holding advanced degrees (or persons of exceptional ability) working in a position that requires an advanced degree or the equivalent, and the EB3 is available for professionals and skilled workers if the job requires a bachelor’s degree or two years of specialized training or experience.

In theory, applicants in the EB2 category would be eligible for a green card before the EB3 category since it is considered to have a higher “preference,” but this is not always the case. Cut-off dates can vary greatly depending on the number of petitions received for a particular preference category from a specific country. For instance, as we reported last month, the cutoff date for EB3 applicants from China moved forward to April 1, 2012, while the EB2 cutoff date for applicants from China is at December 8, 2008. In other words, EB3 applications from Chinese nationals will be processed nearly several years sooner than EB2 applications.

In situations such as these – when the EB3 category has a more recent cut-off-date than the EB2 category – an applicant has a couple of options: (1) file concurrent I-140 petitions in multiple preference categories; or (2) if the applicant already has a pending EB2 petition, file a subsequent I-140 petition for the EB3 category.

Can I File a Subsequent I-140 and Preserve my Priority Date?

Although immigration laws require that an I-140 petition be accompanied by an original labor certification, a foreign national applicant is allowed to retain the priority date of an approved I-140 petition and apply it to any subsequent I-140 petition filed on his or her behalf. Moreover, even though Department of Labor regulations establish a 180-day validity period for individual labor certifications, U.S. Citizenship and Immigration Services (USCIS) recognizes an exception to the 180-day validity period if an amended I-140 petition is filed to request a different visa classification.

How Do I File a Subsequent I-140 Petition?

If you would like to file a subsequent I-140 petition because the cut-off date for another preference classification to which you apply is more recent, you should contact a skilled immigration attorney. The Chicago employment-based immigration attorneys at the Shapiro Law Group have been helping foreign national employees obtain the appropriate work-related visas for more than 30 years. We can help you determine whether you qualify for another preference category with a more recent cut-off date and can assist you with the filing of a subsequent I-140.

The process of obtaining PERM labor certification and filing for an employment-based visa can be complex, time-intensive, and confusing. The Chicago work visa lawyers at the Shapiro Law Group focus on helping employers and employees through all phases of the petition process.

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.

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