Multiple I-140s, Priority Date Retention, and EB-2/EB-3 Availability for Chinese Nationals

Since the June 2013 Visa Bulletin, the third preference employment-based immigrant visa category (EB-3) for individuals born in China has a more recent cut-off date than the second preference employment-based category (EB-2). This has held true even as recently as the December 2013 Visa Bulletin, which indicates that the EB-3 category has a priority date earlier than October 1, 2011 compared to the EB-2 category which has a priority date of November 8, 2008. Because of the more recent priority date for the EB-3 category, it is important to recognize what options to pursue when filing an I-140 petition under either category for a Chinese national.

Under 8 CFR section 204.5(a), an I-140 petition generally must be accompanied by an original labor certification to be considered properly filed. Section 204.5(e) allows the alien to retain the priority date of an approved I-140 petition and apply it to any I-140 petition that is subsequently filed on his or her behalf, whether the I-140 petitions were filed by the same or different employers. This is true even if the same labor certification, which would qualify for either EB-2 or EB-3, is the basis for multiple I-140s.

While there is a 180-day validity period for individual labor certifications, USCIS recognizes an exception to this period when “an amended petition is filed to request a different visa classification than the visa classification requested in the previously filed petition. Although it is more common to see petitions file an upgrade from an EB-3 preference category to an EB-2 preference category, the current circumstances for Chinese Nationals pose a situation where “downgrading” to the EB-3 category is more beneficial if the prior petition was based on the EB-2 category. Since it is possible to file an EB-2 and an EB-3 petition based on the same labor certification, there are some considerations to keep in mind for those who have gone ahead and pursued the EB-2 route, since it had normally been the faster route to permanent residence for Chinese nationals. Some of these considerations for filing a subsequent I-140 petition include the following:
– Make sure the beneficiary qualifies under the new category
– Do not revoke or withdraw the initial I-140 petition
– Include all of the beneficiary’s qualifications for the position offered, as well as documentation that the employer continues to have the ability to pay the prevailing wage
– Include a copy of the EB-2 I-140 approval notice, which contains the priority date
– Provide a copy of the approved labor certification
While these considerations sound like common sense for approaching a subsequent EB-3 I-140 petition filing, it is important that the beneficiary should not lose the benefit of an approved EB-2 I-140 petition should the subsequent petition not be processed before the permanent residence becomes available under the approved petition. If you are in a position where filing a subsequent petition is in your best interest, our office has the experience and knowledge necessary to get the subsequent petition approved so a green card will be available for you sooner.