After all of the work, fees, and filing that was done to get an I-140 approved for the second preference level, you still need to wait for the priority date to be current. For some people, the EB-2 green card waiting time could be several years. Because the EB-1 waiting times are often much shorter, one thing that many of these prospective green card holders consider is EB-2 to EB-1 porting. But porting is not as simple as it sounds, it essentially involves starting again from scratch while retaining the priority date. Keep reading to find out what the process is.
EB-2 and EB-1 Differences
Before we get into the process of EB-2 to EB-1 porting, we first need to understand what goes into acquiring each green card and the differences between them so that you can be best informed as to whether or not this is the best decision for your case.
EB-2 GReen Card
The EB-2 is designed for people who fall into one of two categories:
- Foreign nationals that have obtained an advanced degree (master’s or higher) in their field.
- Foreign nationals that possess exceptional ability in their field. To prove your ability, you need to submit evidence of at least three of the following requirements:
- A specialized degree relating to your field
- Proof of 10 years of experience in your field
- Any licenses or certifications related to your work
- Command of a substantial salary in your field
- Recognition from your peers or awards
- Membership in an association related to your field
Without a National Interest Waiver (NIW), all EB-2 applicants must have a job offer from a U.S. employer and therefore have that employer acquire a PERM Labor Certification on their behalf. The NIW makes it possible for entrepreneurs and practice owners to self-petition for their EB-2 green cards.
To qualify for an NIW, you must demonstrate three things to the USCIS:
- That your work will benefit the culture, society, education, science, technology, or job market of the United States.
- That you are in a unique position to make your work succeed by showing that you have education, experience, past successes, or current progress.
- That the U.S. would stand to benefit more from waiving the PERM requirement for you than it would by enforcing it. This last item is important since the PERM stands to protect U.S. workers.
EB-1 Green Card
The EB-1 is the most prestigious employment-based green card available. It typically has no priority date wait times and applicants for the EB-1A visa do not need a PERM Labor Certification. However, there are times when a backlog builds up and wait times increase. Here are the three categories of EB-1 green cards.
- EB-1A: This is for foreign nationals with extraordinary achievement in the fields of science, business, education, art, and athletics. These achievements can come as an award such as the Nobel Prize or three of the following types of forms:
- Nationally or internationally recognized awards in your field
- Being a member of an organization in your field that requires extraordinary achievement for entry
- Having media or journal publications recognize your work
- Publishing your own work in scholarly articles or professional journals
- Having made significant contributions to your field
- Having your work displayed at an exhibition
- Retaining an impacting role in an association or organization that has a reputation in your field
- Commanding a large salary that distinguishes you in the field
- EB-1B: This is for outstanding researchers and professors. To qualify, you must:
- Have at least three years of experience teaching or researching in your field
- You have been offered tenure or a research position that does not have a fixed term
- International recognition in your academic field
- EB-1C: This category is reserved for executives and managers.
- To qualify as a manager, you must meet these requirements:
- You must manage a function, component, or function of the organization
- As a manager, you must be able to supervise the work of subordinates and have the ability to fire and hire them.
- You must be able to control daily activities and tasks
- To qualify as an executive, you must fulfill the following requirements:
- Control managers in the organization
- Create plans and goals
- Be able to make far-reaching decisions without supervision
- The employer must also meet some requirements:
- It must be a multinational U.S. organization with a branch, subsidiary, or affiliate in a foreign country
- The employer must also have been doing business in the U.S. for at least a year before filing the petition.
- Additionally, you must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
- To qualify as a manager, you must meet these requirements:
Here are some things to keep in mind about the EB-1 before you attempt to port your EB-2 status. As previously mentioned, the EB-1A does not require either a job offer or a PERM Labor Certification. The EB-1B and EB-1C also do not require a PERM but do require a job offer. Lastly, the premium processing service is not available for the EB-1C, so it may not be the fastest option if you are considering porting to an EB-1C.
How the Priority Dates Work
For all green cards, you or your sponsor must file a petition. When the USCIS receives your petition, that date will become your priority date. Each month, the Department of State releases final action dates in their visa bulletin.
When your priority date matches or passes the final action date in your country and category, your date will be considered “current” and a visa number will become available for you. You will then be able to submit an I-485 to change your status.
The primary benefit of EB-2 to EB-1 porting is to reduce the amount of time you need to wait for your priority date to be current. The usual advantage of applying for an EB-1 is that all dates are current no matter which country you hold your citizenship. That means that as soon as your I-140 is approved, you will be able to adjust your status without waiting.
However, over the past several months, the EB-1 dates have not been current. Due to an influx of EB-1 applicants, a backlog has built up across all categories as of February, 2019. Therefore, porting your EB-2 to an EB-1 would actually be a disadvantage, as your priority date waiting time will likely increase significantly (unless you are a citizen of India or China).
However, many of the dates for the EB-2 are also current. If this is the case for you, you would not benefit from porting from an EB-2 to an EB-1. As soon as your I-140 is approved, you will be able to adjust your status.
EB-2 to EB-1 Porting
So now that we know the requirements for obtaining an EB-1 green card, we can finally see about EB-2 to EB-1 porting. Keep in mind that just because you feel as though you are qualified, doesn’t mean that the USCIS will accept your petition. Work with an immigration attorney to gather evidence and solidify your case before filing. This process is much more delicate than porting from an EB-3 to an EB-2 green card.
If you have already had an I-140 petition approved for an EB-2 green card and you are from either China or India, you will have to wait several years before a visa number will become available. To bypass this wait time, you could conceivably go through EB-2 to EB-1 porting if you qualify.
EB-2 to EB-1 Porting Process
In order to be considered eligible for the upgrade, however, you must not only obtain the necessary qualifications for one of the EB-1 categories, but you must also obtain a job that fits your newfound qualifications. Here is an example:
Rateesh has gotten an approved I-140 for his EB-2 green card as an IT specialist for a multinational company. However, because he is from India, his priority date will not be current for at least nine years. During this time, he receives several promotions that land him in a managerial position within the IT company.
In this example, Rateesh might be qualified for EB-2 to EB-1 porting. To do this, he would need to work with his immigration attorney to gather the evidence required to prove his qualifications to the USCIS.
Then, his employer can file a second I-140 under the new EB-1 category. This will allow him to retain his priority date from the first petition. As soon as the new I-140 petition is approved, a visa number will become available as all countries have current priority dates for the EB-1 green card.
However, there is one caveat to the EB-1C green card for multinational managers. One of the main requirements is that the beneficiary must have worked in a managerial or executive capacity for one full year in the three years leading up to the petition. This work must have been done at the company’s offshore branch. Therefore, if Rateesh was currently working in India, he would be in the clear. However, if he was in the U.S. under a nonimmigrant visa such as an H-1B, he would need to return to the Indian branch to work for one full year in order to be considered eligible.
Here is another example:
Cindy has a master’s degree in biochemistry and applied for an EB-2 as a research fellow at a prestigious organization. While she was waiting for her priority date to become current, her work was published in several journals, she gained membership into an exclusive organization for biochemists, and her salary increased to the point of being considerable. This would qualify her for the EB-1A green card. Because the EB-1A does not require a PERM or a job offer, she does not need to obtain a new job in order to port. She simply needs to self-petition and file a new I-140 for the EB-1A along with supporting evidence and fees.
Therefore, porting from an EB-2 to an EB-1 green card is more like filing for a band new green card from scratch and keeping your original priority date.
Note: in the unlikely event that you were able to secure international acclaim and awards such as the Nobel Prize, you may be eligible for an EB-1A green card and so would not need a PERM or an employer to petition again.
How Our Attorneys Can Help
The process of porting from one green card to another is a very delicate legal situation. As with most circumstances like this, you definitely should never attempt to go through it alone. Our attorneys are seasoned experts at employment-based immigration and have helped people get through the most difficult circumstances.
When it comes to something as important as your green card, you need to know that your case is in the right hands. To get in touch with one of our immigration attorneys and schedule a consultation, you can fill out our contact form and tell us about your case.