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EB-3 to EB-2 Porting: How to Successfully Upgrade Your Green Card Application
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Philip is an Indian national who works for a prestigious financial services firm. He has worked for them for several years. He obtained his Bachelor’s degree at an American university and then worked for a U.S. employer, first on OPT and then pursuant to H-1B.This employer also had filed a Labor Certification and employment based third preference (EB-3) petition on his behalf.

Key Points

1. The EB-3 category is retrogressed for all countries but EB-2 is Current for most.


2. Porting from EB-3 to EB-2 can reduce Green Card waiting time by as many as 10 years.

3. Porting from EB-3 to EB-2 is possible with a new job offer from the same employer or from a different employer.


Since joining the current financial services firm, he has obtained an MBA by attending school part-time. Philip wants to become a legal permanent resident as soon as possible as he considers the U.S. his home and he is tired of the uncertainty of the H-1B visa process.


As the wait times for EB-3 for Indian nationals as well as individuals from other countries continues to lag significantly behind EB-2 numbers, is there any way that Philip can obtain his Green Card faster? Can he leverage his many years of experience and/or his MBA to speed up this process?

The Employment Based Immigration System is the stepping stone for many individuals, both here in the U.S. and those abroad, to obtain legal permanent resident status or the “Green Card.” Unfortunately, because of immigrant visa quotas, the wait for the elusive Green Card can be quite long for many individuals, especially those in the Employment Based Third Preference or “EB-3” category. Because this category encompasses most workers, from those who have only 2 years of experience to those that have a Bachelor’s degree and less than 5 years of experience, it is one of the categories that is severely over-subscribed or “retrogressed.” This means that every year more people apply for Green Cards in this category then are available. As people continue to apply, the backlog worsens. 

Currently, immigration is only processing immigrant visa applications for EB-3 petitions with a priority date of December 1, 2007. For nationals of Mexico, it is September 14, 2006. For those chargeable to India, it is December 22, 2002! On the other hand, the Employment Based Second or “EB-2” category is far less oversubscribed. In fact, for all countries except China and India, EB-2 is current, which means that immigrant visas are available as soon as the petition is approved. For China, the EB-2 priority date is at May 15, 2008 and for India it is September 1, 2004. It is also important to note that while EB-2 for India and China is also backlogged, priority date movement in the EB-2 category is usually much faster than it is in the EB-3 category. So, is there a way to workers to upgrade or port from EB-3 to EB-2? Does it benefit them to do so? 

Note: For beneficiaries of immigrant visa petitions (Green Card applications), the priority date is the date that will determine when they will be one step closer to becoming legal permanent residents or Green Card holders. For the discussion of EB-3’s and EB-2’s in this article, the priority date is set by the filing of the labor certification. 

 

EB-3 to EB-2 Porting: The Basics

There are several employment based immigrant visa categories including EB-1, EB-2, EB-3, EB-3/Other Workers, EB-4 and EB-5. For most categories of workers, there must be a job offer from a U.S. employer to qualify for an immigrant visa [exceptions exist for those of Extraordinary Ability (EB-1), those with Exceptional Ability or Advanced Degree Professionals who qualify for National Interest Waiver (EB-2) and EB-5 Investors, who all may “self-petition”]. 

Under immigration regulations, there is no limit to the number of immigrant visa petitions that can be filed on someone’s behalf, as long as each immigrant petition contains a bona fide job offer. Also, once a priority date is assigned to a worker or “beneficiary” in the EB-1, EB-2 or EB-3 categories, the beneficiary can retain that priority date for future or past employment based petitions in the EB-1, EB-2 or EB-3 categories, i.e. beneficiaries have the benefit of using the earliest priority date. This means that if someone files a petition in the EB-3 category and then later files a petition in the EB-2 or EB-1 category, the earlier of the 2 priority dates can be used.

So, for those who have immigrant petitions filed in the EB-3 category and are waiting years to obtain the Green Card, the ability to later file in any higher category is clearly advantageous, especially for those from China, India and the Philippines.  Furthermore, for those in countries like India and China, where both EB-2 and EB-3 are oversubscribed, the ability to retain an old priority date becomes doubly beneficial. The most common strategy used by most workers is porting from EB-3 to EB-2. 

The EB-3 category encompasses:

  1. Skilled Workers- the job requires at least 2 years of experience or training;
  2. Professionals- the job requires at least a U.S. four year Bachelor’s degree or its equivalent and less than 5 years of experience;
  3. Unskilled Workers/Other Workers- the job requires less than 2 years of training or experience.

The EB-2 category encompasses:

  1. Advance Degree Professionals- the job requires an advanced degree (Master’s degree or higher) or a four year Bachelor’s degree or its equivalent plus 5 years of progressive work experience in the field;               
  2. Exceptional Ability- the beneficiary possesses exceptional ability in the arts, science or business.

 

The EB-3 to EB-2 Porting Process

To begin the EB-3 to EB-2 porting process, the U.S. petitioning company or employer must intend to sponsor the foreign national or have a job offer and the minimum requirements for the position should make it eligible for the EB-2 category. The employer must then start the process of filing an immigrant petition in the EB-2 category. 

Step 1: Determine Eligibility

If you are considering EB-3 to EB-2 porting, you already have a petition filed in the EB-3 category, which means you qualify as a Skilled Worker, Other Worker or Professional. The first step in order to port is to see if you are eligible for the EB-2 category.

Step 2: The Job Offer

An employer must offer you a position which would generally require someone with an Advanced Degree or a Bachelor’s Degree and five years of experience or you must qualify for a National Interest Waiver.

 

QUESTIONS TO ASK YOURSELF
Q Do you have an Advanced Degree?
Q If it is a foreign degree, is it equivalent to a U.S. Advanced Degree?
Q Do you have a Bachelor’s degree and five year of progressive experience?
Q If it is a foreign degree, is it equivalent to a U.S. Bachelor’s degree?
Step 3: The Labor Certification and the Immigrant Petition

If you don’t qualify for the National Interest Waiver, the employer must file a Labor Certification with the Department of Labor (DOL) after having tested the labor market by conducting bona fide recruitment and certifying that there are no available, able or qualified U.S. workers. Once the Labor Certification is certified by the DOL, the employer can submit the Form I-140, Immigrant Petition for Alien Worker to USCIS with the required supporting documents

TIP

Make it very obvious to the USCIS officer that you are attempting to retain the older priority date. It should be printed in large size, bold letters on the cover letter when filing the I-140 with USCIS.

It is very important that, when USCIS approves the I-140, the I-797 Notice of Action or “Approval Notice” lists the earlier priority date. While priority date retention is automatic and an operation of law, it will alleviate future issues

and possible delays with the Adjustment of Status (AOS) or Consular Processing if the correct priority date is actually printed on the I-140 approval notice.

In order to effectuate this, the cover letter for the I-140 should contain clear, bold language that the petitioner is attempting to retain an older priority date. This older priority date should be highlighted and the petition should include a copy of the previous I-140 Approval Notice.  

Step 4: Check the Visa Bulletin

Once the EB-2 petition is approved by USCIS, check to see if your priority date is current

  1. If your priority date is current in the EB-2 category and you are in the U.S. in valid nonimmigrant status or are otherwise eligible, you can file an Adjustment of Status application to obtain your Green Card. 

Note 1: If an EB-3 applicant already has Adjustment of Status (AOS) petition pending with USCIS, then once the EB-2 petition is approved and is current, USCIS must be notified so that the pending AOS application can be connected to the EB-2 petition. This is also true for an AOS based on a spouse’s previously filed employment based petition. 

Note 2: If EB-2 is current at the time the I-140 is being filed, the AOS can be filed concurrently or at the same time as the I-140. This way, the AOS can be processed much sooner. 

If the I-140 Approval Notice does not contain the older priority date, then the AOS should be submitted with a cover letter that contains clear, bold language that the applicant is adjusting based on an older priority date. Both the new I-140 approval notice and old I-140 approval notice need to be submitted. Lack of an I-140 approval notice without the earlier priority date or clear instructions regarding priority date retention will likely cause the AOS application to be rejected. 

  1. If you are outside the U.S., the approved visa petition will be forwarded by USCIS to the National Visa Center (NVC). Once your priority date is current in the EB-2 category, the NVC will process your application and schedule an appointment for you at a designated U.S. Consulate or Embassy and will forward the application documents to the Consulate. You will then be required to attend the interview as instructed, and if approved, will be issued an Immigrant Visa that will be valid for 6 months.

If the I-140 Approval Notice does not contain the older priority date, the NVC may not realize that the petition is current. The applicant must contact the NVC to make them aware of the older priority date and they will give instructions as to the next steps. 

CASE SCENARIO

Billy is a U.K. national who has an approved EB-3 petition. He has several more years to wait before he can apply for a Green Card because his priority date is fairly recent and EB-3 is retrogressed. He has just earned a Master’s degree.  Can he upgrade to EB-2?

Yes, Billy is now eligible for EB-2. Billy’s employer must file a new Labor Certification (including conducting all new recruitment) and I-140 petition. Once the I-140 is approved, he can immediately file an Adjustment of Status application because EB-2 is current for All Chargeability Areas, which includes the U.K. 

 

EB-2 v. EB-3: The Timeline

The purpose of I-140porting, of course, is to save time.  Let’s try to conceptualize how much time is truly saved in the chart below. We have three individuals, an Indian national, a Filipino national and a U.K. national, who all have a priority date of December 1, 2010 and have been waiting for their priority dates to become current. We will demonstrate the great advantage of the EB-2 process over EB-3 by using the June 2013 Visa Bulletin:

Country of Birth

Labor Certification Process*

I-140*

AOS in EB-3**

AOS in EB-2**

India

6-18 months

1-8 months

10+ years

6 years

Philippines

6-18 months

1-8 months

3-4 years

Immediate Filing

United Kingdom

6-18 months

1-8 months

2 years

Immediate Filing

*This includes preparation and processing of the application.
**This indicates the amount of time an applicant must continue to wait before filing the AOS or starting Consular Processing

 

What You Should Consider Before EB-3 to EB-2 Porting

  1. Ability to Use Prior Experience

When preparing a labor certification for EB-2, the job offered will most likely require a minimum amount of experience in addition to the Advanced Degree. If the beneficiary only possesses a Bachelor’s degree or its equivalent, then at least 5 years of experience must be required to qualify for EB-2. 

  • EB-3 to EB-2 Porting with the same employer

If you have been working with the same employer for many years, the regulations make it very difficult to utilize the experience or training gained with the same employer in order to qualify for the job offered. You will need previous experience from another job. If you don’t have previous experience, then porting to EB-2 with your current employer may prove difficult.

Note: If you have gained an Advanced Degree during the time you have been working for your employer, you will be eligible for EB-2. However, it is not advisable to base a Labor Certification solely on the requirement of an Advanced Degree unless that is truly the minimum requirement for the job. 

  • EB-3 to EB-2 Porting with a different employer
TIP

The “new” employer (Employer B) can be affiliated to your current employer (Employer A) as long as it is a legally separate and distinct entity that has its own federal tax ID number.

Porting through a different employer from the one who filed the EB-3 may alleviate any issues about using past experience.  In order to port with a different employer, you have two options.

  • If you have left or are going to leave your current employer, the new employer can file an EB-2 petition utilizing the experience you have gained with your previous employer
  • The “Future Job Offer”- Technically speaking, all job offers in the labor certification context are future job offers, i.e., the employer is offering to employ you as a permanent worker upon the receipt of your legal permanent residence or Green Card. This also means that you do not have to be currently employed by the company that is sponsoring you for the employment based Green Card. While you continue to be employed with Employer A who filed your EB-3 petition, Employer B can file a new EB-2 petition utilizing the experience you gained with Employer A.
  1. Ability to Use Prior Experience

As the degree and/or experience requirements change when going from EB-3 to EB-2, so too does the salary requirement. When filing a labor certification, an employer must first obtain a prevailing wage determination from the DOL. The DOL determines the minimum salary for the job offered based on the degree, experience requirements, and job duties. As the salaries for many EB-2 positions are relatively high, the employer filing the immigrant petition must not only promise to pay this higher salary but must be able to prove the ability to do so. 

  1. Foreign Degree Equivalency
TIP


It is never too late to go back to school!

If your foreign degree doesn’t qualify you for EB-3, it may be worthwhile to back to college and obtain a U.S. degree.

It is very important that if you have a foreign degree, that it be evaluated by a reputable evaluation agency that works often with USCIS.  It is also important to make sure that your institution of higher education is formally accredited by the appropriate credentialing agency in the country of education.  Many applicants who go through the entire process of filing a new petition in the EB-2 category are disappointed in the end when USCIS denies the petition because their own research regarding the institution reveals that it is not accredited or the degree is not equivalent to a U.S. degree.

Note: Many advanced degrees obtained abroad are only equivalent to a U.S. Bachelor’s degree. You may still qualify for EB-2, however, if you can show you have the five years of progressive experience. 

  1. Aging-out of Derivative Children

Many foreign nationals in the EB-3 have spouses and minor children who are considered derivative relatives. These dependents will be able to obtain a Green Card at the same time as the main beneficiary. Unfortunately, under current immigration laws, once a child reaches 21, they will no longer be eligible to obtain the Green Card with their parent unless they are eligible for CSPA protection. Even then, the protection is limited. Upgrading to EB-2 will shorten or eliminate the wait for the Green Card meaning that many of these children will be able to obtain the Green Card with their parents. 

Note: Once a foreign national child in the U.S. turns 21, he or she must possess their own status and can no longer be dependent on their parent’s visa status. If this child ages-out and is no longer able to adjust based on his /her parent’s Green Card application, the child must obtain the Green Card independently either through employment or through family-based immigration.

Conclusion

Porting from EB-3 to EB-2 can save applicants many years of waiting for the elusive but much-wanted Green Card. For some of these individuals the actual waiting time can be cut by as much as 5 or 10 years! Porting from EB-3 to EB-2 is possible with either a new job offer from the same employer or from a different employer. Further, an Advanced Degree earned and/or experience gained during your current employment may also be used for satisfying EB-2 requirements under certain circumstances.  

VisaPro attorneys successfully help both U.S. employers and qualifying beneficiaries through the EB-3 to EB-2 Porting process.

Contact VisaPro if you have a pending EB-3 application and you are looking to shorten the waiting time for getting a Green Card. Our experienced attorneys will be happy to assist you.

After consulting with immigration experts, Philip realized that he could leverage his years of experience and his MBA to apply for the Green Card in the EB-2 category because he had an Advanced Degree. After discussing it with his current employer, they initiated the EB-2 Green Card process, including the labor certification process. Soon, Philip’s immigrant petition was approved and he had a Green Card in his hand. 


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