Recent USCIS guidance indicates that individuals from China with timely filed EB-2 category I-140s can now take advantage of movement in the Visa Bulletin’s EB-3 category by having their employers file a new EB-3 I-140 petition. In doing so, the priority date for the old I-140 can be transferred to the new filing, significantly reducing the wait for an immigrant visa.
A priority date is a date that determines a foreign national’s place in line for a legal permanent resident status, or a “green card.” An individual’s priority date may be based on when an employer first filed a labor certification on that individual’s behalf or when a family member first filed a petition to sponsor that individual. Once someone has a priority date, you can determine how far in line that individual is for a green card based on his or her “preference category.” The preference category is determined by whether an individual is applying for a green card through an employer or family member as well as education and experience or familial relationship. Each month, the Department of State issues a Visa Bulletin so that individuals can track the movement of each preference category to determine whether they are eligible to file for a green card, which is also known as becoming “current.”
Historically, individuals in the second preference for the employment-based category (“EB-2”) from China have had much shorter lines for a green card that those in the third preference employment-based category (“EB-3”). However, in the June 2013 Visa Bulletin, the EB-3 China line began to move faster than the EB-2 China line. Since that time, the line for EB-3 China has continued to move faster than the EB-2 China line with the March 2014 Visa Bulletin showing that the EB-3 China line is over three and a half years ahead of the EB-2 China line.
Because of this forward movement of EB-3 China, many individuals that originally filed in the EB-2 China category are wondering what to do. Luckily, according to USCIS guidance, those individuals can have their employer file a new Form I-140, Immigrant Petition for Alien Worker (“I-140”), for the EB-3 category as long as their original I-140 in the EB-2 category was timely filed. They can file this new I-140 concurrently with their application for a green card, which is the Form I-485, Application to Adjust Status, if their priority date is current.
Additionally, those individuals who are just starting the green card process in the EB-2 category may consider filing a second I-140 for the EB-3 category after certification of the Application for Permanent Employment Certification, or PERM. This way they will have the option of applying for a green card whenever they become current in either the EB-2 or EB-3 category.
If you have any questions regarding pursuing any of these options, please contact an attorney at Minsky, McCormick & Hallagan, P.C. We can counsel you as to the best way to proceed in your individual case.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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