Filing an EB-2 PERM and I-140 when the Beneficiary has an approved EB-3 PERM and I-140

A beneficiary with an approved EB-3 PERM and I-140 can have their existing employer / sponsor or a new employer file a new PERM and I-140 petition in the EB-2 category.

The first step is to prepare the new PERM petition using EB-2 requirements.

What is the difference between EB-2 and EB-3?

EB-2 and EB-3 are determined by the employer’s requirements for the position.

EB-2: In order for a petition to qualify for EB-2, the position must require at least a Masters Degree (or foreign equivalent), or a Bachelors Degree and 5 years of experience.

EB-3: In order for a petition to qualify for EB-3, the position must require at least 2 years of experience.

The EB-2 PERM and I-140 may be filed through the same employer that filed the EB-3.

This may be appropriate if one obtained a promotion or otherwise moved into an EB-2 job.

If filing through the same employer, the employee ideally should have completed the minimum years of work experience for the EB2 position before starting work with the current employer.

Experience gained with the sponsoring employer can be relied upon in the PERM application if it can be shown that the foreign national will be sponsored for permanent residence for a position that is “not substantially comparable” to the position in which he gained the experience.

The PERM regulations define “substantially comparable” as “a job or position requiring performance of the same job duties more than 50 percent of the time.”

One method for assessing whether two positions are substantially comparable is to compile a list of the job duties for each position, including the amount of time the foreign national spends on each duty.

If the job duties and time dedicated to each largely overlap, it is likely that the two positions are substantially comparable.

Experience gained with a foreign parent, affiliate or subsidiary entity is usually not the same employer.

By definition, the same employer is one with the same Federal Employer Identification Number (FEIN).

Any experience the foreign national employee has gained with a related entity, inside or outside of the U.S., can be used for PERM purposes so long as the sponsoring employer has a different FEIN.

If the PERM does require experience the foreign national gained in a position with the sponsoring employer, it is important that differences in the positions be sufficiently documented.

This can be accomplished through position descriptions, a record of the percentage of time spent on the various duties, organization charts, and payroll records.

Requiring experience the foreign national gained with the sponsoring employer can be detrimental to a case if the experience was not gained in a position that was substantially different, and it is incumbent upon the employer to prove as much.

Generally, if the new position has a different SOC code (Standard Occupational Classification) than the position originally hired for, it can be determined to be not substantially comparable. Here is the SOC code website: http://www.onetonline.org/help/online/search#code.

The primary benefit to utilizing the strategy of re-filing comes in the potential to retain the priority date from the EB-3 case. This option only exists if the EB-3 I-140 petition has been approved.

It is the policy of the USCIS to allow the retention and transfer of the earlier priority date if the I-140 petition has not been revoked by the USCIS for fraud or misrepresentation.

A new PERM or I-140 filing, even if not approved, would not affect a prior approval.

It is possible to have multiple approvals of labor certifications and I-140s for the same individual.

The employer should look at the EB-2 prevailing wage determination to make sure that they have the ability to pay during the I-140 stage.

Client Reviews

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

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