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Approved I-140

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I have an approved I -140 from company A in EB2. I'm with Company B in H1B , they initiated my GC but in EB3, telling there are some salary constraints and later will be upgraded to EB2



1- I have a 4 years degree and 10 + years of years. With a wage of 70+ k per year shouldn't I qualify for EB2? 

2- I had a H1B from 2012, and I moved to USA in 2014 Jan and now my H1B expires in Jan 2017. Can I stay in USA using my I-140 from Company A. If yes, can I work w/ Company B. If I had to visit india, should I have any issues w/ stamping ? Or is it recommended I get my H1B extension filed or EB3 GC process which my Company B wants to do?




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What was the reason to move from a job with EB-2 to a job with EB-3? Seems like your employer did not tell you that it is going to be EB-3. Since you were already on EB-2, you are eligible-we can assume that.

It is tactic employer use so they can utilize expertise of high level employee (EB-2), start green card application in EB-3 category so it will take forever. If in between employee make request to reconsider application to EB-2, restart the process and all time you taken so far will be waste. The good news for you is that you have a priority date from you first application. With second application, you can still request to use that PD so at least your time will not be lost.

Now, the important thing in your case is that your second employment application is with EB-3. That is the worst situation for you since you already proved to be EB-2 level candidate. My advise is that you must convince your employer to change it to EB-2. This may not be easy because they need to promise higher wage and put that in application and must pay you when your green card approves. You have some leverage here because you can tell them if they don't switch your application to EB-2 category, you will find new job. Finding a new job that will sponser with EB-2 does look like difficult thing but, when you go for that, you will still be able to use your very first priority date. And most important thing is that your final green card will come lot earlier with EB-2 category, no matter what you PD is compared to application with EB-3 category.

Looking at how PD are moving all over since last two years with retrogression, you could benefit lot with EB-2 category. I say that is your only hope, no matter where you work. I am not judging you but changing job during green card application requires courage and need to be done carefully.


Now, answering to your questions:

1. It does not matter what your salary, degree or experience is, what matters to EB-2 category is job profile. For EB-2 category,  profile level is higher. Remember, ideally you are already EB-2 candidate. Your employer played a card that downgraded you.

2. I-140 is not a status. You will still need valid H1b to work. You can keep extending H1b beyond 6 years provided that you have approved I-140 and you are continuing to get green card. You still need H1b but as long as you have I-797 for H1b you can keep working and stay inside USA> Once you decide to visit outside country, you will need to get visa stamped.

Take care

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