Awaiting an EB-2 visa; can I switch to EB-3?

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Question

My employer is sponsoring me for a green card in the EB-2 category. (I’m already working for this company in the U.S., on an H-1B visa.) The labor certification application and I-140 petition have been approved. I'm from China and have a master's degree. I just saw the recent Visa Bulletin cutoff dates. My priority date is not current for EB-2, but the EB-3 cutoff date is past my priority date. I'm confused. I thought my master's degree and being in the EB-2 category would make my green card process faster than EB-3. Can I change to EB-3 and submit my I-485 Adjustment of Status application now?

Answer

Others in a position similar to yours have wondered the same thing, given that the EB-2 category (for jobs that require an advanced degree or a bachelor's degree and five years of progressive experience), is supposed to be a higher priority than the EB-3 category (for jobs that require at least two years of experience).

While your employer can submit a new I-140 petition in the EB-3 category, and you could include your I-485 Adjustment application at the same time, you may not want to do that. As explained in Nolo's article on the waiting time for a green card, it's possible for the Visa Bulletin cutoff dates to go backwards, what is called "retrogression." Therefore, just because EB-3 for China right now appears faster than EB-2, that doesn't necessarily mean that it will stay that way.

Keep in mind that your priority date must be current both when you submit your I-485 Adjustment application and when U.S. Citizenship and Immigration Services (USCIS) approves it. What may happen in your case is that your employer could submit a new I-140 Petition, and you could submit your Adjustment application, and the EB-3 category for China then could retrogress in the coming months. If that happened, your I-485 simply would remain pending until the EB-3 cutoff again catches up to your priority date. And at the same time, it's possible that the EB-2 category for China once again could surge ahead of EB-3, leaving you quite frustrated.

Two potential benefits of changing to the EB-3 category in your situation may be to allow a spouse to submit an I-485 Adjustment application and therefore also to apply for a work permit, or to provide greater flexibility for you and your employer if you want to change jobs within the company.

If you have a spouse in the U.S. on a dependent visa, such as H-4, that does not allow for employment, submitting the I-485 application, along with an additional application for the work permit, may be of interest. And as long as the I-485 remains pending, your spouse can continue to renew the work permit in one- or two-year increments.

For you and your employer, the benefit of having an I-485 Adjustment of Status application pending is that after it reaches the 180-day point, you can accept a new job in a "same or similar" occupation, and your I-485 still can be approved. Therefore, if a new opportunity arose, you may be able to switch to that role without a new labor certification application and yet another I-140 petition.

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