Can I Upgrade My Green Card Application Case from EB3 to EB2 Category?

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Hi William,

I have an approval of Labor Certification and Form I-140 immigrant visa petition in the employment-based, third preference (EB3) category. With a new Master degree and additional job experience, can I upgrade my Green Card application case from EB3 to EB2 category?

Answer,

There are some alien applicants who are interested in the possibility of what is referred to as "upgrading" their Green Card application EB3 cases to employment-based, second preference (EB2). This strategy is used following the approval of an I-140 petition in the employment-based, third preference (EB3) category.

The observation of the monthly U.S. Department of State's visa bulletin reveals a major difference between the EB2 and EB3 immigrant categories, for some countries like India, Mexico, Philippines, and China. For example, in recent years, EB2 India has fluctuated between 2004 and 2010, EB3 India has slowly advanced for the same period, from 2002 to 2003. Thus, the EB2 India's visa movement is faster than EB3.

For many EB3 visa applicants, the immigrant visa waiting time is unavoidable. However, some employment-based immigrant visa applicants may qualify to change to EB2 visa category because of the following reasons:

having obtained advanced degrees,
having additional job experience,
having new job offers that satisfy the requirements for EB2 filings;
an increase in the complexity and sophistication of one's job duties and a commensurate increase in salary.

The change to EB2 immigrant visa category does not actually "upgrade" the previously filed Labor Certification (LC) and Form I-140 petition. This EB3 to EB2 "upgrade" process requires the filing of a new Labor Certification and related Form I-140 petition, requesting EB2 classification.

Using the EB2 category, the obvious benefit is a potentially accelerated path to eligibility for filing for adjustment of status to permanent residence with form I-485, the strategy involves requesting retention of an earlier and more favorable priority date, which is possible in cases with an earlier-approved Form I-140 petition.

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