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May 30, 2013

At the outset, let me make this clear: There is no magical short-cut to quickly “convert” an Employment-based third preference (EB-3) priority date on an approved I140 Petition to an Employment-based second preference (EB-2) priority date.

To get the EB-3 priority date “ported” to an EB-2 Immigrant Visa Petition, the employer (the same employer who filed the original EB-3 case, or a new employer) needs to file an Application for Labor Certification after completing the recruitment steps mandated by the regulations.  Such a Labor Certification should be done with EB-2 requirements, i.e., the offered  job should require at least a Master’s degree.  If the employee does not have a Master’s degree but has a Bachelor’s degree plus five years of progressive experience, and if the job can be performed by a person with such qualifications/experience, then the employer can use the Bachelors’ degree plus five years of progressive experience requirement in lieu of the Master’s degree. 

When this EB2 Labor Certification gets approved, the employer files an I-140 Petition requesting the USCIS to retain the previous (EB3) priority date.  When the USCIS approves this EB2 petition, the earlier (EB3) priority date is indicated on the approval notice.  If such priority date is current for the employee’s country of birth, an immigrant visa is immediately available for the employee, and the employee becomes eligible to proceed to the next state, i.e., filing of an Application to Adjust Status. (If an Application to Adjust Status has already been filed, such fact should be pointed out to USCIS at the appropriate stage).

As explained above, the EB3 process itself is not ported, what gets ported is just the priority date of a previously approved (EB3) I-140 Immigrant Visa petition.

There are several important considerations which would determine whether the above is a feasible option.

Whether the job qualifies for EB-2

The EB-2 job should “require” an advanced degree, i.e., a Master’s degree, or a Bachelor’s degree plus five years of progressive experience..  That is, the job should be complex enough that only a person with a Master’s degree (or Bachelor’s degree plus five years experience) can perform it.  There is a possibility that the Department of Labor could ask the employer to prove this through “business necessity” documentation. 

In other words, the mere fact that the employee to whom the job is offered happens to have a Master’s Degree (or Bachelor’s degree plus five years’ experience) does not, by itself, qualify the offered job as an EB-2.

Whether the employee qualifies for EB-2

The employee should have the required advanced degree (or Bachelor’s degree plus five years’ progressive experience) ideally before he/she started working for the sponsoring employee.   The experience gained while working for the sponsoring employer can be used subject to certain limitations, but this can possibly result in an audit by the Department of Labor and might require additional documentation.

Wage offered

The wage that needs to be offered for the EB-2 job can be much higher than the EB-3 wage previously offered.  The Department of Labor decides the prevailing wage based on the requirements specified by the employer.  The wage levels and rates used by the Department of Labor can be found at the website www.flcdatacenter.com.  Our experience has been that when the job needs a Master’s degree (with or without one or two years’ experience), the DOL usually gives the Wage Level I or II.  However, if the job requirement is a Bachelor’s degree plus five years experience, then it would usually be Level IV.  The employer should prove the ability to pay such wages.  In some cases it could be much higher than the salary the employer is currently getting or the employer is willing to offer.

The above is a brief explanation of the process, and should not be taken as conclusive legal advice.  There could be several other factors that determine the feasibility of a second EB-2 process by an employer to capture an earlier EB-3 priority date. 


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