Changing to EB2 for current filing of I-485 from EB3

[adelkam]

Here's the summary:

Bachelor degree in Civil Engineering with over 11 years of professional experience (6 years previous employers + 5 years with my current employer). I-140 approved EB-3 category priority date 10/7/08

My current company’s lawyer initially told that I will be eligible to apply for EB-2 but he filed an EB-3. He didn’t provide sound reasons but explained that he leant towards EB-3 for higher chances of success (?).

Filing for green card is current for EB-2 category under my citizenship quota. One of my colleagues advised me to file another I-140 EB2 category and take the chances. If it gets approved then I can file I-485 current for my quota category, and if it gets denied then it won’t harm my original I-140 approval or PD.

Am I getting good advice? Is there any risks?

 

[Jackolantern]

It is true that an EB3 labor certification and I-140 are more likely to be approved than EB2, due to the higher qualifications and extra scrutiny involved for EB2. However, some companies prefer EB3 for a different reason -- it makes you become stuck with them for longer than EB2.

Was the labor certification and/or job ad filed with EB2-level qualifications? Is your company willing to redo the labor certification and I-140 in EB2?

 

[adelkam]

Thanks Jackolantern,

I don't remember what qualifications were posted on the ad. I'll check on this tomorrow. But, why the qualifications which the company posted in the job ad for labor certification is relavent to refiling I-140 EB2? I already have the years of experience and the certificates that entitles me to EB2.

I don't think the company will mind re-filing for I-140 EB-2 category if I offered to pay the application fees. Is there any risk of filing another I-140 EB2 on my existing EB3 approval or priority date which I already have?

Thanks

 

[Jackolantern]

Thanks Jackolantern,

I don't remember what qualifications were posted on the ad. I'll check on this tomorrow. But, why the qualifications which the company posted in the job ad for labor certification is relavent to refiling I-140 EB2? I already have the years of experience and the certificates that entitles me to EB2.

EB2 requires the job to have requirements of at least Masters or Bachelors + 5 years, in addition to the person having those qualifications. So unless the existing labor certification specified that level of qualifications, you can't change to EB2 for the same job; the EB2 filing would have to be done for a different position.

I don't think the company will mind re-filing for I-140 EB-2 category if I offered to pay the application fees. Is there any risk of filing another I-140 EB2 on my existing EB3 approval or priority date which I already have?

A new labor certification would require a new round of advertising and screening job applicants. If a qualified American applicant shows up and accepts the job, they're supposed to hire them and end your GC process. Granted, this is not heavily enforced, but if the labor certification is audited they will pay attention to things like this and may deny the labor certification if they see that qualified applicants were rejected.

However, a workaround is to create a new position for the EB2 job, so if they have to hire an American, you and your EB3 remain in place because it's a different position.

If you are in EB3 India, the wait will be so long that it's probably worth the risk to attempt a change to EB2 even if it could make you lose the EB3 opportunity. If the EB2 labor cert. and I-140 are approved, you can port the old priority date from the EB3 application.