How to Convert from EB-2 to EB-3

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]

  1. Be sure the beneficiary qualifies under the new category;
  2. Do not revoke or withdraw the initial I-140 petition;
  3. 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;
  4. 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;
  5. 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;
  6. Include a copy of the EB-2 I-140 approval notice, which will contain a priority date and file number;
  7. Provide a copy of the approved labor certification.

[1] June 1, 2007 Neufeld Memorandum, “Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) final rule, Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity, on Determining Labor Certification Validity and the Prohibition of Labor Certification Substitution Requests”, published on AILA InfoNet at Doc. No. 07062172.

[2] May 9, 2000 Pearson Memorandum, “Transferring Section 245 Adjustment Application to New or Subsequent Family or Employment-Based Immigrant Visa Petitions” (may 9, 2000), published on AILA InfoNet at Doc. No. 00062110.

[3] “Multiple I-140s, Priority Date Retention, and the 2013 China EB-2/EB3 Anomaly”, published on AILA InfoNet Doc. No. 13120548. (Posted 12/16/13).

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

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I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
T M
T M
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17
Mark and team went above all my expectations of an 'online' service agency I went in with very low expectations to match the low cost of the service and was amazed that the experience was no different than going through an expensive attorney. They were very prompt on responses, very patient and also very knowledgeable on every facet of the application (including a follow up checklist). I would highly recommend them considering the low cost they charge and the high risk we take by doing this ourselves
First Dhalsite
First Dhalsite
22:27 01 Sep 17
USVISANOW streamlined the paperwork which saved us so much time. This also reduced the stress involved in filling out the paperwork. They also are very understanding and respond very quickly to questions and emails. Jackline is now a US citizen which took less than 5 months. Thank you Mr. Taylor and your team. From Brian and Jacky.
Jackline Osero
Jackline Osero
17:32 12 Sep 17
The best law agency I have ever worked with. Very responsive, experienced. I trusted my green process to them and it was done perfectly without and issues in minimum possible period. Thank You Very much Marc, John and others!!!
Hrach Gyulzadyan
Hrach Gyulzadyan
16:38 30 Sep 17
My husband and I worked with John Dorer from Marc Taylor's office, and his services exceeded our expectations. He was very knowledgeable, responsive, and our Green Card process and interview from start to finish went smoothly. Thank you so much, John, for your dedication to our case and all your help. I would highly recommend USAVISANOW to all!
Sophia Nguyen
Sophia Nguyen
17:26 09 Oct 17
Marc and John helped me apply and get my green card. They are very specific about needed documents and other details. Also, they are very responsive when you have a question. I know I emailed them several times just to ask questions that I could have found answers online myself. They are very patient and professional. If you want to get great services with reasonable fees contact them!
Amin Bagheri
Amin Bagheri
11:54 12 Oct 17

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