http://www.imminfo.com/News/Newsletter/2010-06/case_study_upgrade_from_eb3_to_eb2.html
In this edition's case study, we will examine an individual's recent effort to upgrade his immigrant preference category from EB3 to EB2. In particular, we will look at the mechanics of how it was done and the practical considerations involved.
Raj is an IT professional who works for a medium sized company. He holds a four year bachelor's degree in computer science from an Indian university and has two years of post-graduation experience, other than with his then employer. In mid-2003, Raj's employer filed a labor certification on his behalf and, when it was approved, filed a successful EB3 I-140. In the Summer of 2007, he filed an application for adjustment of status, which is still pending.
Recently, Raj did the math with respect to the likelihood of his priority date becoming current within a reasonably short time. He knew that the law only provides for about 2,800 visas per year for his preference category (EB3, India). He learned that there are at least 10,000 people in line ahead of him and possibly more (depending upon the accuracy of the data provided by the CIS). Even in a best case situation, he realized that he will have to wait at least four more years before his priority date has a chance of becoming current.
Raj decided to investigate upgrading his current EB3 status to EB2. He learned that since he has a four year bachelor's degree, it might be possible for him to qualify for EB2. To do this, he would have to show five years of full time, post graduation experience. He has more than five years of experience, but only two prior to being hired by his current employer.
Raj had heard that he could recapture his old EB3 priority date for use with his new EB2 petition. He was concerned, however, that filing for EB2 might damage his pending EB3. After investigating further, he learned that his pending EB3 could not possibly be harmed by the new EB2 filing. He also learned that while the new EB2 petition would share the EB3 priority date, the EB3 petition would be able to retain that date without any difficulties.
The Department of Labor (DOL) rules are pretty strict with respect to minimum qualifications gained on the job with the sponsoring employer. Raj's current employer can sponsor him for a new PERM, but the new job's duties must be more than 50% different from the earlier job for which he was hired and where he gained the qualifying experience. Raj further understands that even if they employer can prove this to the satisfaction of the DOL, his case will almost certainly go into an audit where it will require another year and a half of processing time.
In the end, Raj decided to find a new sponsoring employer. The new employer was willing to offer Raj a position that clearly required an advanced degree (or equivalent). Since Raj had the required four year bachelor's degree and more than five years of post graduation experience, he accepted the new job offer.
PERM processing is currently taking less than ten months. The prevailing wage determination takes two months, the required recruiting takes at least two months, and the DOL is taking slightly less than six months to process a PERM once it is filed.
Raj learned that the CIS will not allow him to substitute his new I-140 into his pending EB3 adjustment of status (AOS) application. Instead, they require a new AOS filing. Knowing the the CIS can take years to process an AOS application, even when the applicant's priority date is current at all times, he decided to opt for overseas consular processing.
Since his EB3 AOS application was still valid, he was able to continue using his EAD and advance parole while doing his EB2 consular processing.
Upon approval of his PERM, Raj persuaded his employer to file the I-140 through premium process so that it would be approved in two weeks. When the I-140 was approved, the CIS sent it to the National Visa Center (NVC) for overseas consular processing. Since the law provides for the automatic recapture of his earlier priority date, when his EB2 was approved, it had a mid-2003 priority date. The NVC walked Raj through the process of submitting his application and supporting documents. When everything was complete, they scheduled him for an interview overseas since his priority date was current.
Raj received about five weeks advance notice of his final interview. He went abroad, had his interview, and returned with his immigrant visa. About ten days after his return, he received his green card in the mail. He then wrote to the CIS and asked them to withdraw his pending EB3 since he now had a green card through EB2.
