The employment based immigration is the stepping stone for many individuals, both in the U.S. and 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 from India and the Philippines, in the Employment Based Third Preference EB3 category.
Because this category encompasses most workers, ranging from those who have only 2 years of experience with no education to those that have a Bachelor’s degree and less than 5 years of experience, this category becomes severely over-subscribed (i.e. retrogressed). This means that every year more people apply for Green Cards in this category than are available. As people continue to apply, the backlog worsens year after year.
My Case Scenario
Chetan Mehta 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.The employer also filed a Labor Certification and employment based third preference EB3 petition on his behalf.
Since joining the current financial services firm, he has obtained an MBA by attending school part-time. Chetan Mehta 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 EB3 wait times for Indian nationals continues to lag significantly behind EB2 numbers, is there a way Chetan Mehta can secure his Green Card faster? Can he leverage his experience and/or his MBA to speed up the process?
1. The EB3 Backlog – An Overview
For many years, the EB3 backlog lagged severely behind the EB2 category. In recent years, however, while EB3 remains retrogressed for all countries, it is only retrogressed by a few months for most countries. However, for those chargeable to India and the Philippines, EB3 lags many years behind being current.
On the other hand, the Employment Based EB2 category is far less oversubscribed. In fact, for all countries except India and China, EB2 is current, which means that immigrant visas are available as soon as the petition is approved. While India is not current in the EB2 category, it is far less retrogressed than the EB3 category. While EB2 for India is backlogged, priority date movement in the EB2 category is usually much faster than it is in the EB3 category. So, is there a way for workers to upgrade or port from EB3 to EB2? Does it benefit them to do so?
NOTE: For beneficiaries of immigrant visa petitions, 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 EB3 and EB2 in this article, the priority date is set by the filing of the labor certification.
DID YOU KNOW?
For China, EB3 is LESS oversubscribed than EB2 at times, while it reverses at other times. Many individuals who have earlier filed EB2 petitions have re-filed in the EB3 category in order to obtain the green card faster!
2. EB3 To EB2 Porting: The Basics
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 EB1, EB2 or EB3 categories, the beneficiary can retain that priority date for future or past employment based petitions in the EB1, EB2 or EB3 categories, i.e. beneficiaries have the benefit of using the earliest priority date. This means that if someone files a petition in the EB3 category and then later files a petition in the EB2 or EB1 category, the earlier priority date can be used.
For those who have immigrant petitions filed in the EB3 category and are waiting for years to obtain the Green Card, the ability to later file in any higher category is clearly advantageous, especially for those from India and the Philippines. Furthermore, for those in countries like India and China, where both EB2 and EB3 are oversubscribed, the ability to retain an old priority date becomes beneficial. The most common strategy used by most workers is porting from EB3 to EB2.
The EB3 category encompasses:
a.Skilled Workers: the job requires at least 2 years of experience or training
b.Professionals: the job requires at least a U.S. four-year Bachelor’s degree or its equivalent, and less than 5 years of experience
The EB2 category encompasses:
a.Advanced 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
b.Those with Exceptional Ability: the beneficiary possesses exceptional ability in the arts, science or business.
DID YOU KNOW?
In order to qualify for EB2 with a Bachelor’s degree, you must have five years of progressive experience that must have been gained after obtaining the Bachelor’s degree. If you are qualifying with a Master’s degree, however, any qualifying experience could have been gained before or after obtaining the Master’s degree.
3. The EB3 To EB2 Porting Process
To begin the EB3 to EB2 porting process, the U.S. employer or petitioner must intend to sponsor the foreign national or have a job offer. The minimum requirements for the position should make it eligible for the EB2 category. The employer must then start the process of filing an immigrant petition in the EB2 category.
Step 1: Determine Eligibility
If you are considering EB3 to EB2 porting, and you already have a petition filed in the EB3 category, it means you qualify as a Skilled Worker or Professional. The first step in order to port is to see if you are eligible for the EB2 category.
Step 2: The Job Offer
An employer must offer you a position for which the minimum requirement be an Advanced Degree (Master’s degree or higher, or its equivalent) with or without experience OR a four-year Bachelor’s Degree, or its foreign equivalent plus five years of experience OR you must qualify as an Alien of Exceptional Ability.
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.
Step 4: Check The Visa Bulletin
Once the EB2 petition is approved by USCIS, check to see if your priority date is current.
a.If your priority date is current in the EB2 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 EB3 applicant already has Adjustment of Status (AOS) petition pending with USCIS, once the EB2 petition is approved and is current, USCIS may need to be notified so that the pending AOS application can be connected to the EB2 petition. This is also true for an AOS based on a spouse’s previously filed employment based petition.
NOTE 2: If EB2 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.
b.If you are outside the U.S. or have elected to do Consular Processing, the approved immigrant petition will be forwarded by USCIS to the National Visa Center (NVC). Once your priority date is current in the EB2 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.
When filing the I-140, Immigrant Petition, the cover letter should contain clear, bold language that the petitioner is attempting to retain an older priority date. The petition should include a copy of the previous I-140 Approval Notice. This way, 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 does 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.
My Case Scenario
Billy is a Filipino national who has an approved EB3 petition. He has several more years to wait before he can apply for a Green Card because his priority date is fairly recent and EB3 is retrogressed. He has just earned a Master’s degree. Can he upgrade to EB2?
Maybe. Billy is eligible for EB3 to EB2 porting if he gets a new job with the same employer or a new employer that requires a Master’s degree. The 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 EB2 is current for all chargeability areas, which includes the Philippines.
4. EB2 vs. EB3: The Timeline
The purpose of I-140 porting, 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 and a Filipino national, who both have a priority date of December 1, 2012 and have been waiting for their priority dates to become current. We will demonstrate the great advantage of the EB2 process over EB3 by using the March 2017 Visa Bulletin:
|Country of Birth – India
|Country of Birth – Philippines
|Labor Certification Process* – 6 to 18 months
|Labor Certification Process* – 6 to 18 months
|I-140* – 1 to 8 months
|I-140* – 1 to 8 months
|Ability to file AOS in EB3** – 12 to 15 years
|Ability to file AOS in EB3** – 7 to 9 years
|AOS in EB2** to 6 years
|AOS in EB2** to 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
5. What You Should Consider Before EB3 To EB2 Porting
A. Ability To Use Prior Experience
When preparing a labor certification for EB2, 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 EB2.
EB3 To EB2 Porting With The Same Employer
If you have been working with the same employer for many years, the regulations make it harder to utilize the experience or training gained with the same employer in order to qualify for the job offered. In order to use experience gained with the same employer, the job duties must be at least 50% different.
Alternatively, you will need previous experience from another job. If you don’t have previous experience, then porting to EB2 with your current employer may be difficult.
NOTE: If you have gained an Advanced Degree during the time you have been working for your employer, you will be eligible for EB2. 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.
EB3 To EB2 Porting With A Different Employer
In order to port with a different employer, you have two options.
a.If you have left or are going to leave your current employer, the new employer can file an EB2 petition utilizing the experience you have gained with your current employer
b.The “Future Job Offer”- Technically speaking, all job offers in the labor certification context are offers of future employment, i.e., the employer is offering to employ you as a permanent worker upon the receipt of your legal permanent residence or Green Card. What Future Job Offer means is that 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 EB3 petition, Employer B can file a new EB2 petition utilizing the experience you gained with Employer A.
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.
B. Ability To Pay The Proffered Wage
As the degree and/or experience requirements change when going from EB3 to EB2, 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 EB2 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.
C. Foreign Degree Equivalency
If you have a foreign degree, it must 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 EB2 category are disappointed in the end when USCIS denies the petition because the institution 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 EB2, if you can show you have the five years of progressive experience gained after obtaining the relevant degree.
If your foreign degree doesn’t qualify you for EB3, it may be worthwhile to back to college and obtain a U.S. degree.
D. Aging-out Of Derivative Children
Many foreign nationals in the EB3 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 are no longer eligible to obtain the Green Card with their parent unless they are eligible for CSPA protection. Even then, the protection is limited. Upgrading to EB2 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
My Case Scenario
After consulting with immigration experts, Chetan Mehta realized that he could leverage his years of experience and his MBA to apply for the Green Card in the EB2 category because he had an Advanced Degree. After discussing it with his current employer, they initiated the EB2 Green Card process, including the labor certification process. Soon, Chetan Mehta’s immigrant petition was approved and he had a Green Card in his hand.
Porting from EB3 to EB2 can save applicants many years of waiting. For some of these individuals, the actual waiting time can be cut by as much as 5 or 10 years! Porting from EB3 to EB2 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 EB2 requirements under certain circumstances.
Green card process is generally complex and involves multiple steps, especially employment based. Over the years we maintained impeccable success record. As of this day [March 2022], we have been able to maintain a clean approval rate on every labor certification we have ever failed.
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