Changing Lanes: Moving From EB-3 Into The Less Congested EB-2 Lane

Each month, the Visa Bulletin continues to reveal a significant difference between the cut-off date for permanent resident applicants in the EB-2 and EB-3 category. Those waiting in the slower EB-3 lane are left to ask: Can I move into the EB-2 lane?

It is frequently possible to change to the EB-2 lane. However, there is no "conversion process." The lane change maneuver entails filing a new Labor Certification (PERM) with the Department of Labor, this time for a position requiring an advanced degree: a Master's degree or Bachelor's degree plus 5 years of experience. Additionally, a new I-140 petition must be filed with USCIS to prove the employee possesses the required qualifications (i.e., MS or BS+5).

Let's look at some scenarios where one may change to EB-2:

Scenario 1: employer promotes an EB-3 beneficiary who already had a MS when hired

In this scenario, a hypothetical employee already possessed a MS when she was hired as "Engineer," but her employer's minimum requirement for that position is BS+3. Because her employer would accept someone with less than MS or BS+5, the employee's PERM and I-140 were classified as EB-3, simply due to the job's minimum requirement.

As this employee advanced along her career path, she was promoted to "Senior Engineer," which requires a MS or BS+5. Now, the employer may file a new PERM and I-140 for the new position, and the new case would be classified as EB-2.

Even better, the employee will be able to retain her EB-3 priority date. As a result, the employee moves into the EB-2 lane yet keeps the priority date established by the date her EB-3 PERM was filed.

Scenario 2: employer promotes an EB-3 beneficiary who had BS+3 when hired

In this scenario, a hypothetical employee possessed a BS and 3 years of experience when she was hired as an "Engineer," a position that requires BS+3. While working as an "Engineer," her employer filed PERM and I-140, which were approved as EB-3. Subsequently, after 2 years in the "Engineer" position, the employee was promoted to "Senior Engineer," a position that requires a BS+5.

In this scenario, the employee still cannot change to EB-2 because same employer experience generally cannot be counted in determining whether the employee meets the requirements of the new position. For USCIS purposes, the employee's qualification remains BS+3.

However, there is an important exception to the same employer experience rule. That is, if the employee is promoted to a position that is substantially different, the experience in the prior position (or positions) can be factored when determining qualification for the new position. For the positions to be deemed substantially different, at least 50% of the job duties must be different. For example, if one is promoted from "Engineer" to "Engineering Manager," the 2 years of "Engineer" experience can be factored and the beneficiary would then meet the BS+5 requirement for the new position. The employer can then file a new PERM and I-140 for the Engineering Manager position, which will be classified as EB-2.

Scenario 3: EB-3 beneficiary leaves her I-140 employer for another company

Let's continue with the same hypothetical employee who possessed a BS and 3 years of experience when she was hired as an "Engineer." After working in the same position for 2 years, during which time her employer obtained an EB-3 I-140 approval on her behalf, she accepts a "Senior Engineer" position with a different company. The new employer requires MS or BS+5 for the position.

The new employer may now file an EB-2 PERM and I-140 for the new position because she meets the BS+5 requirement at the time of hiring.

In this scenario, there may be issues with retaining the original priority date if the previous I-140 is revoked. Generally, however, USCIS will allow the employee to retain her original priority date as long as the previous I-140 has not been revoked by USCIS for fraud or misrepresentation.

Three-year Bachelor's degree

For USCIS to approve EB-2 based on BS+5, the employee must have the equivalent of a US Bachelor's degree (a 4-year degree) based on a single-source degree to satisfy the BS portion of the requirement. In other words, USCIS does not allow one to combine degrees to obtain an equivalency to a US Bachelor's. Most commonly, this rule affects those with a 3-year Bachelor of Science degree from India and a 2-year post-graduate diploma.

On the other hand, employees with a 3-year Bachelor and a 3-year Master's will qualify for EB-2 if the minimum job requirement accepts a MS, as a MS always consists of multiple degrees (at least a Bachelor's followed by a Master's).

This issue is complicated and numerous exceptions apply. For the purpose of this discussion, we merely highlight that most employees with a 3-year Bachelor's (and no Master's) cannot change into the EB-2 category.

Impact of a second PERM & I-140 to the first PERM & I-140

Generally, a new PERM and I-140 can be processed without negatively affecting the first EB-3 case. As such, a new PERM or I-140, even if denied, would not disrupt a prior approval.

It is also possible to have more than one PERM approval and one I-140 approval for the same individual. Thus, even when a beneficiary's original priority date from the EB-3 case is retained, the prior EB-3 I-140 remains undisturbed.

Interfiling: Adding the new EB-2 I-140 to a pending I-485 based on an EB-3 I-140

If the I-140 employee has already filed an I-485 application, whether based on an EB-3 I-140 approved for the same employer or a previous employer from which the employee has "ported," the EB-2 I-140, once approved, can be "interfiled" into the pending I-485 application. The I-485 will not need to be re-filed.

Once the EB-2 I-140 is interfiled, USCIS will adjudicate the I-485 when the original priority date becomes current in the EB-2 classification.

When successfully executed, changing into the less congested EB-2 queue makes a tremendous difference in the time it takes to secure permanent residency. However, the process is complicated and the strategy must be analyzed by an attorney knowledgeable about both the law and your qualifications. Please consult with your ILG attorney if you are interested in further exploring this option.