Our office receives many requests on how to convert a PERM petition from EB-3 to EB-2, however in light of the recent movement for China on the visa bulletin we are now receiving more requests on how to convert from EB-2 to EB-3.
Chinese nationals who have either a pending or an approved EB-2 I-140 petition are becoming interested in learning how to convert their EB-2 petition to EB3 petition if possible.
New EB-3 PERM is NOT Required:
The 2007 Neufeld Memo made exceptions to file the subsequent or amended I-140 petition with a copy of a labor certification that is expired the time the amended or duplicated Form I-140 is filed, if the original approved labor certification was filed in support of previously filed petition during the labor certification’s validity period.
A new perm will not be required “in the instances where the amended petition is requesting a different visa classification than the visa classification requested in the previously filed petition, or when the previously filed Form I-140 petition has been determined to have been lost by USCIS or DOS. [1]
You can retain the previous priority date:
According to 8 C.F.R. § 204.5(e), a subsequent EB-1, EB-2 or EB-3 petition is entitled to earliest priority date, unless the prior petition is revoked due to fraud.
This means that if the beneficiary gets a new approval under EB-3 visa category he/she should be able to port the previous priority date form his/her previously approved EB-2 petition.
How does this affect my I-485 application?
If the beneficiary has a pending I-485 Adjustment of Status filed based on an approved EB-2 I-140, the adjustment of status application should be transferred to the subsequently filed EB-3 petition provided that the priority date is current for EB-3 and the applicant continues to be eligible for adjustment of status. [2]
If the beneficiary has not filed I-485 Adjustment of Status as the priority date was not current, filing EB-3 petition would allow them to file I-485 Adjustment of Status application concurrently.
Checklist on filing the subsequent I-140 EB-3 petition: [3]
- Be sure the beneficiary qualifies under the new category;
- Do not revoke or withdraw the initial I-140 petition;
- Indicate on the cover letter that you are filing a subsequent I-140 petition in accordance with 8 CFR §204.5(e), indicate the classification you are seeking, and explain that an original labor certification is not attached because it was filed with a previous I-140 petition;
- Include the PERM number on page 3 of the I-140, check the appropriate box noting that the original labor certification was previously filed, and include the previous I-140 receipt number in an attached explanation;
- Include all evidence of the beneficiary’s qualifications for the position offered, as well as documentation of the employer’s continuing ability to pay the prevailing wage;
- Include a copy of the EB-2 I-140 approval notice, which will contain a priority date and file number;
- Provide a copy of the approved labor certification.
Related Links:
PERM Overview
EB-2 vs EB-3
PERM FAQ
PERM / I-140 Ability Pay Requirement
PERM and Prevailing Wage Processing Times
PERM and I-140 Complete Do it Yourself Kit
PERM Attorney