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All other Green Card Issues I-140/I-485, Family Based Green Card

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  #1  
Old 02-24-2010, 09:17 PM
ksvreg ksvreg is offline
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Priority Date
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Aug-03
Category
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EB3
I140 Mailed Date
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06/01/2007
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India
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I-485
I485 Mailed Date
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06/30/2007
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Join Date: Jun 2007
Posts: 129
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Default EB3 to EB2 Please advise.

I have been full-time with big company for the past 9 years. Stuck with EB3. I need a serious input from you guys about joining in a new company and applying EB2. I probably get new employment with a small firm of size 100-150 employees. I have MS from USA in 2005. Is it good idea to join in new company or is it a worth waiting for EB3 dates. My PD is in 2003. What if you are in my situation? Please advise. Thanks.

Last edited by ksvreg; 02-24-2010 at 09:19 PM.
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  #2  
Old 02-24-2010, 09:50 PM
EB-VoiceImmigration EB-VoiceImmigration is offline
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Default Here is some info from Murthy.com - hope this helps...

Moving to the Faster Lane : Changing EB3 to EB2

We at the Murthy Law Firm receive many inquiries as to whether it is possible for an individual with an employment-based, third preference (EB3) case to change to the employment-based, second preference (EB2) category. As explained in this article, it is possible for many some people to make this transition. When combined with the potential to retain the priority date from the earlier employment-based (EB) case, this can be a powerful tool for qualified individuals to obtain permanent residence, or the "green card," much earlier.

EB3 Cannot Simply be Changed to EB2

Often individuals ask whether their current EB3 cases can somehow be converted to EB2s. They will usually mention that they had enough education and/or experience to meet the EB2 requirements at the time the EB3 case was filed. The answer to this is simply, "No." The EB category of any labor certification-based case is set at the beginning, when the labor certification is prepared and filed. The category depends on the requirements specified in the labor certification. If these requirements are at the EB3 level, then the case is filed as an EB3, even if the foreign national beneficiary may have qualifications in terms of the education and work experience sufficient for an EB2 level job.

New EB2 Case Filing Based on Minimum Job Requirements

It is possible for an individual with an EB3 case to have either the existing employer / sponsor or a new employer file a new case in the EB2 category. Of course, the new position must meet the EB2 requirements, and the individual must qualify for the offered position. The starting point must always be with the job requirements, not one's own education and experience. It is the job that must fit within the EB2 category, as the law requires that the employer specify the minimum education and other qualifications for the specific job. Then, of course, the beneficiary must be able to establish that s/he meets the education and experience required for the job.

New EB2 Filing Permissible with Job Change

It is not unusual for an individual with an EB3 case to qualify for EB2. This happens when one acquires additional education and/or experience through the years during which the EB3 case has been pending. Over time, people often are promoted into jobs that may meet the EB2 requirements.

Typically, questions about potentially changing to EB2 come from individuals who have reached the point where they have filed their I-485s. They have waited for a number of years, but are suffering under the enormous waiting times in the EB3 category. Many have used AC21 to change jobs, are advancing in their careers, and now hold jobs that could meet the EB2 standards.

EB2 Filing can be with Existing or New Employer

As explained above, in order to move from EB3 to EB2 it is necessary to start over with an entirely new labor certification. This often is filed through a new employer, when an individual has moved to a different job.

It potentially could be filed through the same employer that filed the EB3 labor certification. This could be appropriate if one obtained a promotion or otherwise moved into an EB2 job. If filing through the same employer, the employee ideally should have completed the minimum years of work experience for the EB2 position before starting work with the current employer. This is because there are legal issues and potential restrictions when relying on the experience gained with the same employer to qualify for the new job. These issues should be analyzed and discussed with an attorney experienced and knowledgeable immigration law.

Transfer of Earlier Priority Date to New Case Filing

The greatest benefit to utilizing the strategy of re-filing comes in the potential to retain the priority date from the EB3 case. This option exists if the EB3 I-140 petition has been approved. If so, then it is possible to request retention of this priority date in the later-filed EB2 case. This means that it potentially is possible to transfer the earlier EB3 priority date to the later-filed EB2 case with a new or the same employer. In many cases, this means that the individual could have a current or closer-to-current priority date, thus saving many years of waiting to become eligible for permanent residence.

There are some issues with respect to retention of the priority date if the I-140 has been revoked. Generally, however, it is the policy of the USCIS to allow the retention and transfer of the earlier priority date if the I-140 petition has not been revoked by the USCIS for fraud or misrepresentation.

Is Earlier EB3 Filing Made Vulnerable by Filing New EB2?

Most people inquiring about this option are concerned about any potential risks to their current EB3 cases. There are some procedural options with respect to the final step in the re-filed cases. However, it is possible to process the new case without risk of disruption to the EB3 case. This assumes that all information provided in the course of the prior filing was accurate.

A new labor certification filing, even if not approved, would not disrupt a prior approval. The same holds true for an I-140 filing. Conversely, approvals of the labor certification and I-140 do not disrupt or displace existing approvals. It is possible to have multiple approvals of labor certifications and I-140s for the same individual. Even when the request to retain the earlier priority date from the EB3 case is granted, the prior EB3 case remains undisturbed. There is nothing transferred or taken away from the EB3 case in the process of requesting that the EB2 case be assigned the same priority date.

At the final stage, there are options as to how to complete the case. The pros and cons should be discussed with a qualified immigration attorney. It is possible to proceed with the cases essentially in parallel, allowing for two cases and two potential avenues for eventual approval of permanent residence. The best way to proceed depends upon one's situation and, ideally, should be analyzed to consider the risks and options. What is helpful to most people, however, is that they do not have to risk their current EB3 cases to try to move to EB2.

Conclusion

At the Murthy Law Firm, we have successfully utilized the strategy discussed in this article for many of our clients by filing for each a new EB2 case with the same or a new employer. While it requires starting over with a new labor certification, for many it offers a significant advantage in terms of timing when the earlier priority date can be retained. MurthyDotCom and MurthyBulletin readers who wish to explore this option further should contact the Murthy Law Firm to help them with this process or for a consultation to determine whether it is appropriate for them.

Copyright 2010, MURTHY LAW FIRM. All Rights Reserved
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  #3  
Old 02-24-2010, 11:54 PM
ksvreg ksvreg is offline
Senior Member
Priority Date
:
Aug-03
Category
:
EB3
I140 Mailed Date
:
06/01/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
06/30/2007
Compare
Join Date: Jun 2007
Posts: 129
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Default thanks

Thanks for the info. I read this before. I want to get the opinions based on the current trend. I just want to find out risk worth. (something like cost benefit in economics terms)
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  #4  
Old 02-25-2010, 10:55 AM
ksvreg ksvreg is offline
Senior Member
Priority Date
:
Aug-03
Category
:
EB3
I140 Mailed Date
:
06/01/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
06/30/2007
Compare
Join Date: Jun 2007
Posts: 129
ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold
Default prevailing wage

I started talking to new employer about my joining and I requested for preparing PERM stuff before I join. This is the only this I want the new employer to do on behalf me before I join with him. The employer said Prevailing Wage determination takes 2 months. And the new employer mentioned that he can not do Prevailing Wage determination without joining. Is this right?
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1 out of 1 members found this post helpful.
  #5  
Old 02-25-2010, 01:58 PM
roseball roseball is offline
Senior Member
Priority Date
:
Nov-03
Category
:
EB3
I140 Mailed Date
:
03/03/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
06/30/2007
Compare
Join Date: Sep 2006
Posts: 776
roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute roseball has a reputation beyond repute
Default

Quote:
Originally Posted by ksvreg View Post
I started talking to new employer about my joining and I requested for preparing PERM stuff before I join. This is the only this I want the new employer to do on behalf me before I join with him. The employer said Prevailing Wage determination takes 2 months. And the new employer mentioned that he can not do Prevailing Wage determination without joining. Is this right?
PWD has nothing to do with you joining them. All DOL does in PWD is it assigns a salary range based on the location of the job and the minimum requirements defined for the position. BTW, it is infact taking 2-3 months to get PWD these days.
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  #6  
Old 02-25-2010, 02:37 PM
ksvreg ksvreg is offline
Senior Member
Priority Date
:
Aug-03
Category
:
EB3
I140 Mailed Date
:
06/01/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
06/30/2007
Compare
Join Date: Jun 2007
Posts: 129
ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold ksvreg is a splendid one to behold
Default thx

Quote:
Originally Posted by roseball View Post
PWD has nothing to do with you joining them. All DOL does in PWD is it assigns a salary range based on the location of the job and the minimum requirements defined for the position. BTW, it is infact taking 2-3 months to get PWD these days.
Thanks a lot for your input. So I can join after the PWD is done.
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