Unique situation for Chinese EB2

[EB2C]

************* published an article as below to present a rare opportunity for Chinese EB2.

 

 

I have a few questions and was wondering whether Murthy attorneys could answer.  It seemed that a very smart Chinese EB2 reached out to Kevin Andrews and Pamela Genise as early as in August 2013 to discuss this opportunity, 3 months ahead of the ************** article.

 

 

My questions are:

 

(1) If PERM is still within 180 days, does a EB2 Chinese have to file PERM again before he or she can file an I-140 in the EB3 category?

 

(2) If PERM has past 180 days, does a EB2 Chinese have to file PERM again before he or she can file an I-140 in the EB3 category?  Department of Labor has a Q&A about PERM validity on the DOL website: Does this sentence mean that if an EB2 I-140 has been approved, the PERM will never expire?

 

"Labor certifications approved on or after July 16, 2007, will expire 180 days from their date of issue, unless filed prior to expiration with the Department of Homeland Security in support of a Form I-140 Immigrant Petition for Alien Worker."

 

http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm

(3) If a Chinese EB2 does not have to file PERM again no matter whether it's with 180 days, can a Chinese EB2 file a new I-140 in the EB3 category using the premium process?  According to the I-140 form and the discussion below, USCIS allows multiple I-140 based on the same PERM.

 

http://www.uscis.gov/sites/default/files/files/form/i-140.pdf
 

Form I-140 states, "Check below if this petition is being filed:
1. To amend a previously filed petition. Previous petition receipt number:
 

(4) If a Chinese EB2 does not have to file PERM again no matter whether it's with 180 days, can a Chinese EB2 file a new I-140 in the EB3 category concurrently with I-485?

 

Many thanks for your time in looking at this unique situation!

[Attorney_23]

The unique situation you appear to be referring to is when a foreign national has an EB2 case, but the processing for EB3 cases for that person is moving more quickly. The main question raised is whether such a foreign national would be able to have an EB3 I-140 petition filed to take advantage of the quicker processing time for the EB3 category. The short answer is “yes” but only if the sponsoring employer first obtains an approved labor certification for a job that requires EB3 level education and / or experience.

 

(1) If PERM is still within 180 days, does a EB2 Chinese have to file PERM again before he or she can file an I-140 in the EB3 category?

 

Yes.  The labor certification must test the labor market for the appropriate category.  If the labor required EB2 level requirements, it can only be filed in EB2 classification.  If you want to have an EB3 I-140 filed, you must first have a U.S. employer obtain an approved labor certification with EB3 level experience and education requirements.

 

(2) If PERM has past 180 days, does a EB2 Chinese have to file PERM again before he or she can file an I-140 in the EB3 category?  Department of Labor has a Q&A about PERM validity on the DOL website: Does this sentence mean that if an EB2 I-140 has been approved, the PERM will never expire?

"Labor certifications approved on or after July 16, 2007, will expire 180 days from their date of issue, unless filed prior to expiration with the Department of Homeland Security in support of a Form I-140 Immigrant Petition for Alien Worker."

http://www.foreignla...faqsanswers.cfm

 

Same answer and #1; a PERM testing the labor market for EB3 level education and experience requirements must be approved before an EB3 I-140 petition can be filed.  An EB3 Skilled Worker position requires at least 2 years of experience and an EB3 Professional position requires at least a U.S. Bachelor’s degree or foreign equivalent. 

 

(3) If a Chinese EB2 does not have to file PERM again no matter whether it's with 180 days, can a Chinese EB2 file a new I-140 in the EB3 category using the premium process?  According to the I-140 form and the discussion below, USCIS allows multiple I-140 based on the same PERM.

 http://www.uscis.gov.../form/i-140.pdf
 

Form I-140 states, "Check below if this petition is being filed:
1. To amend a previously filed petition. Previous petition receipt number:

 

No, your sponsoring employer needs to obtain an EB3 labor certification approval first.

 

(4) If a Chinese EB2 does not have to file PERM again no matter whether it's with 180 days, can a Chinese EB2 file a new I-140 in the EB3 category concurrently with I-485?

 

Only if there is an approved EB3 labor certification filed with the I-140 petition and the I-485 priority date is current.