How to switch from EB3 to EB2

[AlsoSickOfINS]

I guess my name should be SickOfAttorney. I have a real expensive attorney who has filed all my paperwork for visas since 1999. I just noticed 2 weeks ago that he had filed I-140 under EB3 category in Mar 2004 (whereas LC was approved for category EB2). I guess my mistake too - I should have noticed before but its too late and repenting will not cure the damage. As I told my attorney about this mistake now, he wrote to INS to change the category, INS replied that we need to file another I-140 if we want to switch to EB2.

I know it may be a unique situation, but if some one knows and can help I will really appreciate. There are so many good and knowledgable people on this forum. I am not sure if I should just wait until EB3 becomes current or file I-140 again under EB2 and see how it may impact my case overall. Please note that I am still maintaining EAD and H-1 status. My H-1 status will expire in Aug 2006 and I will have to switch to EAD as my company currently has some restrictions on filinig H-1.

Thanks all,

Category - EB3 (should have been EB2)
PD 9/17/01 world-wide category
LC approved Mar 2004 for EB2
I-140 filed Mar 04 under EB3 approved in Aug 2004
I-485 filed concurrently and pending
FBI name check completed in Aug 05.
EAD /AP approved twice and is current

 

[gp111]

I guess my name should be SickOfAttorney. I have a real expensive attorney who has filed all my paperwork for visas since 1999. I just noticed 2 weeks ago that he had filed I-140 under EB3 category in Mar 2004 (whereas LC was approved for category EB2). I guess my mistake too - I should have noticed before but its too late and repenting will not cure the damage. As I told my attorney about this mistake now, he wrote to INS to change the category, INS replied that we need to file another I-140 if we want to switch to EB2.

I know it may be a unique situation, but if some one knows and can help I will really appreciate. There are so many good and knowledgable people on this forum. I am not sure if I should just wait until EB3 becomes current or file I-140 again under EB2 and see how it may impact my case overall. Please note that I am still maintaining EAD and H-1 status. My H-1 status will expire in Aug 2006 and I will have to switch to EAD as my company currently has some restrictions on filinig H-1.

Thanks all,

Category - EB3 (should have been EB2)
PD 9/17/01 world-wide category
LC approved Mar 2004 for EB2
I-140 filed Mar 04 under EB3 approved in Aug 2004
I-485 filed concurrently and pending
FBI name check completed in Aug 05.
EAD /AP approved twice and is current

Best solution to your problem is file one more I-140 (EB-2) & once it gets approved you can request USCIS to switch I-140 underlaying your current I-485.