Question: Can an approved EB-3 Form I-140 be upgraded to EB-2 to use a different visa bulletin cutoff?
Short answer: There is no automatic conversion from EB-3 to EB-2. An employer may be able to file a separate EB-2 Form I-140, but the new filing must independently meet the EB-2 requirements. Whether an existing labor certification can support that filing depends on the actual job opportunity, the certification’s scope and validity, and the basis for EB-2 classification.
What qualifies for EB-2?
EB-2 classification generally requires either a qualifying advanced-degree professional or a person of exceptional ability in the sciences, arts, or business. The advanced-degree route may be based on a US advanced degree or a foreign equivalent; in some cases, a bachelor’s degree followed by at least five years of progressive post-baccalaureate experience can be equivalent to a master’s degree. The job’s minimum requirements and the beneficiary’s qualifications must fit the particular EB-2 basis.
For a typical employer-sponsored EB-2 case, the employer generally needs an approved labor certification unless an exception applies. A National Interest Waiver is a separate route: the person must first qualify for the EB-2 classification and then satisfy the NIW standard. Under Matter of Dhanasar, that standard examines whether the proposed endeavor has substantial merit and national importance, whether the person is well positioned to advance it, and whether, on balance, waiving the job-offer and labor-certification requirements would benefit the United States.
See the USCIS Policy Manual, EB-2 classification.
Can the earlier priority date be retained?
Under 8 CFR §204.5(e), a beneficiary of an approved EB-1, EB-2, or EB-3 petition generally may retain that petition’s priority date for a later petition in a qualifying EB-1, EB-2, or EB-3 category. The regulation lists exceptions. Priority-date retention is unavailable if USCIS revokes the earlier approval for fraud or willful material misrepresentation, the Department of Labor revokes the labor certification, USCIS or the Department of State invalidates it, or USCIS determines that approval was based on a material error. A denied petition does not establish a priority date.
Priority-date retention does not make the new petition approvable, make a visa number immediately available, or extend a labor certification’s validity.
Can the existing PERM labor certification be reused?
Do not assume that an EB-3 labor certification can support an EB-2 filing. Under 20 CFR §656.30, a labor certification involving a specific job offer is tied to the particular job opportunity, the named beneficiary, and the area of intended employment. The certification also has a filing-validity period. The employer must review whether the existing certification is still valid and whether its stated minimum requirements support the proposed EB-2 case. A materially different job or a certification that does not support the EB-2 requirements may require a new labor-certification process.
What should be reviewed before filing?
- The approved I-140, priority date, and whether a priority-date-retention exception applies.
- The exact EB-2 basis and evidence of the beneficiary’s qualifications.
- The job opportunity’s minimum requirements and whether the existing PERM certification supports them.
- The certification’s grant date, validity, employer, beneficiary, job duties, and area of intended employment.
- The current Visa Bulletin, chargeability, and applicable preference category.
An EB-2 filing does not guarantee faster processing or earlier visa availability. The right strategy depends on the existing approval, the job opportunity, the labor certification, the beneficiary’s qualifications, and current visa-number availability.
Need to evaluate an EB-3 to EB-2 strategy? Messersmith Law Firm can review the approved I-140, labor certification, job requirements, and priority date before the next filing is chosen.
Primary authorities: 8 CFR §204.5(e); 20 CFR §656.30; USCIS Policy Manual, Volume 6, Part F, Chapter 5.