> Discuss Your Legal Issue > Ask a Lawyer > Immigration > I would like to know if i file for EB-2 eventhough i am waiting for my priority date as an H1B for change in status,what are the requirements that i

I would like to know if i file for EB-2 eventhough i am waiting for my priority date as an H1B for change in status,what are the requirements that i

1 Answers. Asked on Aug 10th, 2011 on Immigration - Florida
More details to this question:
need to furnish and how long would it take to process?My I-140 had already been approved,would that help in making the process faster?And how much would i be spending?
Answers Showing 1 out of 1
Answered on Aug 11th, 2011 at 1:07 PM

Thank you for your question.

It can be difficult to process a new PERM labor certification through the same employer that already has an approved PERM for you. First, if different requirements are being listed to qualify under EB-2, the permanent position offer would need to be different than before. Second, in general, you could not use any experience gained with the company to show you meet the requirements of the new permanent offer unless you proceeded under the exception to the rule and showed the previous/current job was at least 50% different than permanent job offer. Third, even if you are able to proceed, DOL could audit and request that you withdraw the current aprpoved PERM in order to proceed with the adjduciation of new PERM filing. If the new PERM filing were denied, you would be left with no green card process in place.


In order to proceed with new EB-2 process with the same employer, a new PERM and I-140 would need to be filed. That process and pros/cons would need to be discussed with your employer.


Whether a new process can qualify under EB-2 depends on the position offered and its requirements, your total education and experience, DOL's view on normal requirements for the position offered etc. That would need to be evaluated on a case by case basis looking at many factors.


If you are looking to join a new company and start a new green card process through them, and initially if you are applying for H-1B extension beyond 6 years under AC21 through the new Employer, it may be prudent to obtain the new H-1B approval through the new company before leaving your current company. One risk in general is that the new H-1B through the new company is denied and you already left your current company. Another risk is that your current company withdraws your approved I-140 before the H-1B through the new company is approved, and that could affect your H-1B extension eligibility under AC21. You therefore may want to consider premium processing for the new H-1B filing.


If you have not been able to file 485 paperwork because your priority date is not yet current, you cannot take your current green card paperwork with you to the new company under AC21 and file 485 portability paperwork. You will have to start a new

Report Abuse
Regardless of your situation, U.S. immigration law can be confusing. Are you seeking to come to the United States for pleasure, business or to attend school? Do you want to stay here just temporarily, for a longer period of time or live here permanently? Are you a permanent resident or seeking citizenship? If you want to come to the United States, immigration lawyers can help determine your eligibility for various types of visas and guide you through the application process. If you've already arrived in the United States, an immigration attorney can determine whether you're eligible for permanent residency and if you can bring family members into the country to live with you. Immigration law firms can also work with individuals who have entered the country illegally, overstayed their visas or violated the conditions of their visas and are facing removal or deportation proceedings.
Have an Immigration Question?
It’s Free & Easy.
Ask a Lawyer
Immigration Local Law Firms  
In United States change location
Please select state Update
Do It Yourself Legal Forms

Popular Forums