According to the December, 2007 Visa Bulletin foreign workers falling in the EB-3 category and EB-2 workers from Mainland China and India will be affected by a severe backlog of visa numbers. This means there are more individuals wishing to immigrate than there are allotted visas. As a result, foreign workers in the effected categories may have a wait time exceeding 5 years before they are able to file an application to adjust status to that of a permanent resident.

Filing a New Labor Certification as an EB-2

The same employer who had filed an EB-3 application for a foreign worker may file a new labor certification for EB-2 classification for the same foreign worker if the job offer as an EB-2 is bona fide and the foreign worker possesses the requisite educational and employment experience that meets the criteria for EB-2 classification.

If there is a bona fide job offer as an EB-2 and the foreign worker is qualified, filing a new labor certification as an EB-2 may eliminate or dramatically reduce their backlog wait time. This may be especially advantageous for employers who have already filed and have an I-140 Visa Petition approved for a foreign worker. If the I-140 for EB-3 classification has already been approved, the foreign worker may seek to retain the old priority date on the new I-140 as an EB-2.

Filing a New Petition as an EB-1

A petition for EB-1 can be filed for aliens of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. Though rare, we have seen cases that should have been initially filed as EB-1s instead filed as EB-2s, or EB-3s. Those individuals may wish to file a new visa petition as an EB-1 to avoid the backlog. Those with EB-2 or EB-3 I-140 Visa Petitions already approved can seek to retain the priority date of the initially approved I-140.

Individuals may be tempted to file a new petition in an attempt to circumvent the backlog. However, a new petition should not be filed unless there is real merit to warrant such a filing. As such a careful examination of your current job duties and its requirements should be made in contrast to the job duties and requirements on which the first petition was based.

No Downside

Many employers and foreign workers have expressed concerns that a new petition may jeopardize their approved visa petition. However, a new labor certification and visa petition as an EB-2 represents a new job offer that is separate and apart from the job offer that supported the EB-3 labor certification and visa petition.

In the case of filing a new petition as an EB-1, one is merely filing a petition seeking benefits in a classification they qualified all along, but had instead chosen to file the initial labor certification and visa petition as an EB-2 or EB-3. There is no risk to the approved visa petition if there is a legitimate step up in job duties, job requirements, and the foreign national qualifies for the new position as an EB-2 or if the foreign worker could have initially filed as an EB-1, but did not.