July 2015

Immigration Law Newsletter, July 2015

Upgrading an Employment-Based Green Card from EB-3 to EB-2 Category

Many individuals with an approved Form I-140 under the employment-based green card categories, particularly those from India and Mainland China, must wait several years before their priority dates become current and they will be able to file a Form I-485 for Adjustment of Status. The most significant factor in the wait time for an employment-based green card hinges on whether the green card application was filed under the second employment-based (EB-2) category or the third employment-based (EB-3) category.

July 2015 Visa Bulletin

For workers from India, the July 2015 Visa Bulletin provides a priority date of October 1, 2008 for individuals in the EB-2 category and a priority date of February 1, 2004 for individuals in the EB-3 category.

For workers from Mainland China, the July 2015 Visa Bulletin provides a priority date of October 1, 2013 for individuals in the EB-2 category and a priority date of September 1, 2011 for individuals in the EB-3 category.

Since the wait time to file a Form I-485 Adjustment of Status application can be several years long, some individuals may obtain the necessary qualifications to upgrade from the EB-3 category to the EB-2 category, such as by obtaining an advanced degree or the requisite number of years of experience.

EB-3 versus EB-2

The EB-3 category is divided into three subcategories for skilled workers, professionals, and other workers. Here, we will only discuss skilled workers and professionals. Skilled workers are those who possess at least two years of training or work experience that is not temporary or seasonal in nature. Professionals are those who possess at least a U.S. bachelor’s degree or the foreign equivalent.

To qualify for the EB-2 category, the individual must (1) possess a U.S. advanced degree (master’s or doctorate) or the foreign equivalent, (2) possess a U.S. bachelor’s degree, or equivalent, and at least five years of progressive (post-baccalaureate) experience, or (3) possess “exceptional ability.” “Exceptional ability” is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

Upgrading from EB-3 to EB-2

Some individuals who have an approved Form I-140 under the EB-3 category may acquire the necessary qualifications to upgrade to the EB-2 category while waiting for their priority dates to become current. In such situations, the individual has the option of upgrading their case from the EB-3 category to the EB-2 category while retaining their priority dates.

In order to upgrade from the EB-3 to EB-2 category, the employer must file a new PERM Labor Certification listing a job offer and job requirements that satisfy the EB-2 category requirements. Once the new Labor Certification is certified, a new Form I-140 may be filed requesting approval in the EB-2 category. The employer should submit a written request with the new Form I-140 requesting retention of the earlier EB-3 priority date.

Individuals who have pending I-485 Adjustment of Status applications may request interfiling (conversion) to the new, approved Form I-140 in the EB-2 category. Interfiling allows the individual to replace the underlying EB-3 I-140 approval with the new EB-2 I-140 approval (with the retained priority date). There is no USCIS form or specific format for making an interfiling request, but the request should be made in writing to the USCIS service center where the Form I-485 is pending.

Verma LAW FIRM has successfully upgraded employment-based green cards from the EB-3 to EB-2 category, and successfully had PERM Labor Certifications for the EB-2 “exceptional ability” category certified. Please contact our office for more information regarding the employment-based green card application process.

Assistance with B-2 Tourist Visas

A Tourist Visa, or B-2 visa, is granted to those who are coming to the United States for the sole purpose of visiting temporarily for pleasure, tourism or medical treatment. Applicants for B-2 tourist visas should generally apply at the nearest U.S. Embassy or Consulate in the country where they live. It is important to apply for a tourist visa well before the intended travel date. In order to obtain a B-2 tourist visa, the Applicant must prove that she is traveling to the U.S. temporarily and does not plan to abandon her foreign residence. There are specific eligibility criteria in order to qualify for a B-2 visa, and the consular officer at the U.S. Embassy or Consulate will determine whether the Applicant qualifies. To be eligible for a B-2 visa, the Applicant must demonstrate the following:

Verma LAW FIRM can advise you in regard to the documentation that you will be required to submit at the U.S. Consulate overseas. We can also prepare your B-2 tourist visa documentation for submission at the US Consulate overseas. We have also had recent success preparing B-2 tourist visa documentation for individuals that have previously been denied B-2 visas at U.S. Consulates overseas. In addition, if you are already in the U.S., we can prepare and file your B-2 tourist visa extension with the USCIS or file for a change of status to B-2 tourist visa if you are in the U.S. on another visa.