On the road to a green card, there are several paths that you might take. Because the waiting times are often very long, the circumstances surrounding your status might change for the better. If your employment is taking a turn that may qualify you for EB-3 to EB-2 porting, this article can show you how.
IMPORTANT UPDATE: There is a significant advancement of Priority Dates in EB-3 India category in October 2020 VISA BULLETIN. If you are considering downgrading your petition from EB-2 to EB-3, read THIS ARTICLE.
EB-3 and EB-2 Background
Easily the two most popular employment-based green cards, the EB 3 and EB-2 are excellent choices for immigration depending on your employment situation.
EB-3 Green Card
Because it has the broadest requirements, the EB-3 green card is one of the most accessible green cards available. In order to qualify for this category, you need to be employed in one of the following groups:
- Skilled workers- this group requires a minimum of 2 years of relevant experience.
- Professionals- for this group, you need to hold a bachelor’s degree or higher. You can also hold an equivalent degree from a foreign institution. Unfortunately, having extensive experience will not be able to replace having a bachelor’s degree.
- Unskilled/Other Workers- the jobs in this group can require less than 2 years of experience but must be permanent (meaning they cannot be temporary or contract positions)
It is important to note that all of these categories require a PERM Labor Certification. This process ensures that there are no qualified U.S. citizen workers in the area of your work that could fill the position. The job offer must also be full-time.
EB-2 Green Card
The requirements to obtain an EB-2 green card are more stringent than the EB-3. Regardless the EB-2 is highly sought after and makes up the majority of employment-based green cards. To qualify, you must either:
- Have an advanced degree (master’s degree or higher) or its equivalent in a foreign institution. You can also have a bachelor’s degree with five years of progressive work experience in your field.
- Be able to prove that you have exceptional ability in the fields of either science, art, or business. To learn what qualifies as proof of exceptional ability, you can read this EB-2 page.
For the EB-2, a PERM Labor Certification and a job offer from a U.S. employer are usually required. To have these requirements waived and self-petition, you can apply for a National Interest Waiver. This requires proof that your enterprise will be beneficial to the U.S. economy and culture.
EB-3 and EB-2 Priority Date Differences
The main advantage that comes from EB-3 to EB-2 porting is the shifted priority dates. Your priority date is the exact day that your green card petition was received by the USCIS from your employer (or you if you qualify for an EB-2 NIW).
Because there is a long backlog of green card petitions, the final action dates given by the Department of State (DOS) are often several years behind the current date. The DOS releases a visa bulletin monthly which you can use to see where they are concerning priority dates according to preference categories.
If your EB-3 or EB-2 priority date is the same or earlier than the final action date given in your green card category, then a visa number should be available and you can apply for lawful permanent resident status.
Here is a screenshot of the February 2017 visa bulletin. The 2nd preference correlates to EB-2 visas and the 3rd represents EB-3.
As you can see, while the final action dates tend to depend on where you are a citizen, the EB-2 and EB-3 final action dates are drastically different. Almost every country except for China and India has a current date. This means that citizens of those countries can apply for EB-2 green cards and have a visa number available immediately.
However, all of the EB-3 countries are backlogged. At best, as of February 1st, 2017, you will have to wait four months to apply for a change of status. In the worst case scenario, for countries such as the Philippines and India, you may end up having to wait six to twelve years before you can apply.
EB-3 to EB-2 porting could potentially cut several years off of your green card timeline. However, making this advantageous transition is rarely easy as it requires your new position to be substantially different and more complex than your original job in order to qualify to make the switch.
EB-3 to EB-2 Conversion Rules
Due to the fact that you may be waiting years for your green card, there is always the possibility that you can amass the qualifications for a higher employment-based category.
However, it is very important to note that this change is dependent more on your job rather than your newfound qualifications. This means that while education and experience are important, you will most likely be denied if your new position does not require your newfound qualifications.
For example, if you have acquired a master’s degree during your time waiting for an EB-3, you do not automatically qualify for an EB-3 to EB-2 porting. However, if you also acquire a position that requires an advanced degree, you have a much stronger case.
Basically, in order to be able to transfer from an EB-3 to an EB-2, you most likely need to have a radical change in employment. This is usually done either through a large promotion with the same employer or by working for a new one.
Staying With the Same Employer
This option, while convenient, could potentially run into some obstacles along the way. This is because EB-3 to EB-2 porting under the same employer can be a process that is exploited to retain employees. This often comes in the form of examples where an employer creates a new position just for this occasion or promotes you without a raise in salary or change of duties.
To combat this, the USCIS will most likely analyze multiple aspects of your situation including:
- Does this promotion make sense? Are you being promoted from “Marketing Analyst” to “Marketing Manager” or to “Senior Product Manager”?
- Is the job a well-established position within the company?
- Is your employer actively searching for a worker to replace your EB-3 position?
- How many other employees has your employer helped with EB-3 to EB-2 porting?
In general, the new EB-2 job duties should vary at least 50% from the EB-3 duties. It is also important to note that an advanced degree is not necessarily required to transfer to an EB-2 green card. The USCIS reviews each situation on a case by case basis.
Transferring to a Different Employer
The entire process is simplified if you can manage to find a new job with a different employer. This is because the USCIS is more likely to count your experience with your original employer toward your qualifications for EB-2 status.
For example, if you have worked in Company A for 4 years and try to port your EB-3 petition with the same employer, you may have a hard time using those 4 years of experience as qualifications for an EB-2.
However, if you choose to switch employers to Company B, your 4 years of experience at Company A can count toward your EB-2 green card.
No matter which route you choose, having an immigration attorney by your side that is experienced in EB-3 to EB-2 porting scenarios could potentially save you from common obstacles that others tend to encounter. Your attorney can also help you make sure that you have the best possible chance of success.
EB-3 to EB-2 Porting Process Steps
Once you, your employer (or your new employer), and your immigration attorney are confident in the new position’s qualifications, the EB-3 to EB-2 porting process steps are rather complicated.
In order to begin this process, you must already have an approved I-140 petition for an EB-3 and be waiting to have a current priority date. Your employer (whether it’s your current employer or a new one) basically needs to start the green card process from square one.
Because you are applying for a new, more prestigious position, your employer must first obtain a second PERM Labor Certification from the Department of Labor for the EB-2 position on your behalf. This means going through the entire PERM recruitment process and re-exposing your employer to the possibility for an audit.
Once your employer has obtained a new PERM, then they can file a new I-140 under EB-2 status on your behalf with a copy of the previously-approved EB-3 petition approval notice. Your employer should request to recapture your priority date on the new I-140.
By recapturing or retaining your priority date, you can keep the original EB-3 priority date rather than the EB-2 priority date. This can be especially advantageous if the EB-2 petition was filed several years after the first.
Here is an example:
Andrew is a citizen of the Philippines that is working in the U.S. as a software engineer and his EB-3 priority date is February 2014. If he secures a new job as a project manager, his employer should obtain a new PERM for his new position. Once his new EB-2 petition is approved, and his old priority date of February 2014 is retained, his date will become current and he should be able to file his I-485 immediately.
EB-3 to EB-2 Porting Timeline
The EB-3 to EB-2 porting timeline can be long, but if your priority date will not be current for several years, it may be worth it.
Acquiring a new PERM Labor Certification for the new job can take anywhere from four months to a year and a half depending on whether or not your employer receives an audit. Then you have a few options concerning your I-140.
You can either choose to use premium processing. This is a service that will reduce your I-140 processing timeline to 15 calendar days for a fee of $1,440. This does not increase your chances of approval, it only expedites your petition.
The other option is to choose regular processing. According to the USCIS website, this can take up to five or six months. So altogether, you can expect a total processing time of between nine months and two years to port from EB-3 to EB-2 status.
How Our Immigration Lawyers Can Help
When making an important decision regarding your green card status, it’s always best to work alongside a lawyer. Our immigration attorneys have years of extensive experience helping with EB-3 to EB-2 porting. They can help you avoid possible pitfalls and make sure that the transition is as smooth as possible.
If you would like to get in contact with one of our attorneys, you can fill out our contact form to schedule a consultation.