NSC EB2 to EB3 140 PP Officially Accepted# EB23 - 劳工卡
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From: http://www.immigration-law.com/XXIV.html
04/26/2014: Can Employer File a Second I-140 Petition w/Premiuim Processing
Request Using the Same Certified PERM Application?
This is a hot topic for the Chinese professionals for whom EB-3 visa cut-off
date is favorable than EB-2 visa cut-off date. They usually have approvaed
EB-2 I-140 petition and because of the visa cut-off date movement
abnormality(?) for them, they want to downgrade it to EB-3 category to get
EB-485 application taken care of quickly. The problem was the instruction
for the Premium Procesing filing. It states employer must file the original
copy of the certified PERM application. Here is a good news for those under
the jurisdiction of the Nebraska Service Center. It says you can file a
second (EB-3) petition based on the same certified PERM requesting Premium
Processing Services "inasmuch as" the original certified PERM is the NSC
system as part of the EB-2 file. To make it sure that it works without
delays, NSC advices the following:
Check “Yes” to Question 7 in Part 4 of Form I-140
Don’t check Yes to Question 8 in Part 4 of Form I-140
Attach an addendum explaining that the original was submitted with a
previous I-140, including the receipt number for the previous I-140
For the new Chinese I-140 filers with the EB-2 certified PERM, they are
allowed to file both EB-2 I-140 petition and EB-3 I-140 petition "
concurrently" under the age-old DOL Farmer memorandum using the one and same
certified EB-2 PERM.
In both of the above-two situations, the employers should make it sure that
each of the EB-2 and EB-3 petitions submits a complete set of documentations
including all the required I-140 petition forms and supporting
documentation separately. Failure to follow this requirement will face
either a rejection or a denial.
Another beauty of the NSC practice: Once a basis transfer request is made
and approved, for instance, from EB-2 based I-485 to EB-3 based I-485, it
does not preclude the EB-485 applicant from transferring the basis back to
the previous I-140, for instance, from EB-3 based I-485 to EB-2 based I-485.
It says that the transfer is not a “one-way street.” Therefore, if one
downgrades, but later the priority dates reverse between EB-2 and EB-3 in
the Visa Bulletin, he/she can upgrade again. We thank the NSC for clarifying
its practice.
Believe or not, in old days, priority dates often reversed back and forth
between EB-2 and EB-3 in the Visa Bulletin, not only for the Chinese but
other nationalities, and employers often made it their standard practice to
file both EB-2 and EB-3 petitions "concurrently" using one certified EB-2
labor certification application since it was a matter of just paying one
more I-140 petition filing fee (presently $580). Now lokk at the Visa
Bulletin for Indians. The EB-2 and EB-3 have been moving closer and closer
in visa cut-off dates since most of employers are filing EB-2 petitions or
updates EB-3 to EB-2. Who knows they will see a day when the situation turns
similar to the current Chinese situation.
04/26/2014: Can Employer File a Second I-140 Petition w/Premiuim Processing
Request Using the Same Certified PERM Application?
This is a hot topic for the Chinese professionals for whom EB-3 visa cut-off
date is favorable than EB-2 visa cut-off date. They usually have approvaed
EB-2 I-140 petition and because of the visa cut-off date movement
abnormality(?) for them, they want to downgrade it to EB-3 category to get
EB-485 application taken care of quickly. The problem was the instruction
for the Premium Procesing filing. It states employer must file the original
copy of the certified PERM application. Here is a good news for those under
the jurisdiction of the Nebraska Service Center. It says you can file a
second (EB-3) petition based on the same certified PERM requesting Premium
Processing Services "inasmuch as" the original certified PERM is the NSC
system as part of the EB-2 file. To make it sure that it works without
delays, NSC advices the following:
Check “Yes” to Question 7 in Part 4 of Form I-140
Don’t check Yes to Question 8 in Part 4 of Form I-140
Attach an addendum explaining that the original was submitted with a
previous I-140, including the receipt number for the previous I-140
For the new Chinese I-140 filers with the EB-2 certified PERM, they are
allowed to file both EB-2 I-140 petition and EB-3 I-140 petition "
concurrently" under the age-old DOL Farmer memorandum using the one and same
certified EB-2 PERM.
In both of the above-two situations, the employers should make it sure that
each of the EB-2 and EB-3 petitions submits a complete set of documentations
including all the required I-140 petition forms and supporting
documentation separately. Failure to follow this requirement will face
either a rejection or a denial.
Another beauty of the NSC practice: Once a basis transfer request is made
and approved, for instance, from EB-2 based I-485 to EB-3 based I-485, it
does not preclude the EB-485 applicant from transferring the basis back to
the previous I-140, for instance, from EB-3 based I-485 to EB-2 based I-485.
It says that the transfer is not a “one-way street.” Therefore, if one
downgrades, but later the priority dates reverse between EB-2 and EB-3 in
the Visa Bulletin, he/she can upgrade again. We thank the NSC for clarifying
its practice.
Believe or not, in old days, priority dates often reversed back and forth
between EB-2 and EB-3 in the Visa Bulletin, not only for the Chinese but
other nationalities, and employers often made it their standard practice to
file both EB-2 and EB-3 petitions "concurrently" using one certified EB-2
labor certification application since it was a matter of just paying one
more I-140 petition filing fee (presently $580). Now lokk at the Visa
Bulletin for Indians. The EB-2 and EB-3 have been moving closer and closer
in visa cut-off dates since most of employers are filing EB-2 petitions or
updates EB-3 to EB-2. Who knows they will see a day when the situation turns
similar to the current Chinese situation.
