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:

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.

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