Do Not Approve EB2 Downgrade -zt# EB23 - 劳工卡
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Hi!
I just signed the petition "USCIS: Do Not Approve EB2 Downgrade To EB3
Without New PERM" on Change.org.
It's important. Will you sign it too? Here's the link:
https://www.change.org/petitions/uscis-do-not-approve-eb2-downgrade-to-eb3-
without-new-perm
Thanks!
xxxx
USCIS: Do Not Approve EB2 Downgrade To EB3 Without New PERM
Petition by
EB3C Against Downgrade Without PERM
The undersigned are beneficiaries of employment-based immigration, third
preference (“EB3”). We are waiting for our priority date to become
current so we can submit/finalize our adjustment of status application (i.e.
receive our green cards) under EB3 category.
We are glad to see that the recent trend for my category and changeability
in the Visa Bulletin, published by the Department of State. In recent
months, the cut-off dates of EB3 category for mainland-China applicants has
been rapidly moving forward. The cut-off dates of EB3 China has exceeded
that of EB2 China, which is unusual, but reasonable. Some EB2 applicants
and their employers are advised by immigration attorneys to file new I-140
petitions under the EB3 category, without obtaining new permanent labor
certification (“PERM”) from the Department of Labor. They were hoping to
utilize the EB3 visa numbers as they believe I-140 beneficiaries who qualify
a “higher” category may automatically qualify for a “lower” category.
We would like to remind you that this understanding is very wrong, for a
number of reasons.
First, the Immigration and Naturalization Act established EB2 and EB3 as two
different employment-based preference visa categories, with separate
annual allocation of visa numbers. (INA Sec. 203(b)(2) and (3).) The law
permits any unused visas by EB2 applicants to be made available to EB3
applicants, but not the other way around. At this time, there’s unused
visa numbers available in neither category, as both of the two categories
have at least one country of chargeability deemed “oversubscribed”.
Second, most of the EB2 and EB3 I-140 cases require certified PERMs by the
Department of Labor at time of filing. Federal regulations specifies
different qualification criterias for the PERMs supporting the corresponding
I-140 cases. Specifically, for EB2 category, the job offer portion of the
individual labor certification [...] must demonstrate that the job requires
a professional holding an advanced degree or the equivalent or an alien of
exceptional ability (8 C.F.R. Sec. 204.5(k)(4)(i)), whereas for EB3 category
, the job offer portion of an individual labor certification [...] for a
professional must demonstrate that the job requires the minimum of a
baccalaureate degree (8 C.F.R. 204.5(l)(3)(i)).
We believe that a job offer requiring an advanced degree is not inclusive of
a job offer requiring the minimum of a baccalaureate degree. Therefore,
approvals of any new I-140s seeking EB3 category based on PERMs of which the
job offer portions require advanced degree would not be lawful.
The employment-based immigration, especially the PERM process, was created
to protect the legitimate interests of the domestic workforce. To
demonstrate an applicant is qualified for either EB2 or EB3 category, the
applicant and his/her petitioner bears the burden of proof that there are
not sufficient workers who are able, willing, qualified and available to
perform the job, and that the admission of such beneficiary would not
adversely affect wages and working conditions of the workers in the United
States similarly employed (INA Sec. 212(a)(5)). Obviously, an applicant
with a PERM requiring advanced degree filing I-140 petition under EB3
category would be against the purpose of labor certification, as there would
not be sufficient evidence that a US worker with only bachelor's degree
cannot fulfill the petitioner’s offered position.
Third, the USCIS regulations and Adjudicator’s Manual do not permit
submission of I-140 with expired or non-original PERMs, unless it’s an
amendment to an already approved I-140 case to request a different visa
category. At this time, most of the PERMs submitted by those seeking “
downgrade” have exceeded their original validity periods of 180 days. For
this reason alone, USCIS should reject all attempted submission of duplicate
I-140s seeking EB3 visa category with expired or non-original PERMs. Also,
as explained earlier, a PERM supporting EB2 petition do not support a EB3
petition, so the “amendment” path should not work, either.
With all the reasons above,We believe that if an applicant is a beneficiary
of an existing I-140 under EB2 category, he/she must first obtain a new PERM
of which the job offer portion “must demonstrate that the job requires the
minimum of a baccalaureate degree” to file a new I-140.
We are looking forward to hearing the comments from USCIS on this and how
USCIS will process cases of this nature.
I just signed the petition "USCIS: Do Not Approve EB2 Downgrade To EB3
Without New PERM" on Change.org.
It's important. Will you sign it too? Here's the link:
https://www.change.org/petitions/uscis-do-not-approve-eb2-downgrade-to-eb3-
without-new-perm
Thanks!
xxxx
USCIS: Do Not Approve EB2 Downgrade To EB3 Without New PERM
Petition by
EB3C Against Downgrade Without PERM
The undersigned are beneficiaries of employment-based immigration, third
preference (“EB3”). We are waiting for our priority date to become
current so we can submit/finalize our adjustment of status application (i.e.
receive our green cards) under EB3 category.
We are glad to see that the recent trend for my category and changeability
in the Visa Bulletin, published by the Department of State. In recent
months, the cut-off dates of EB3 category for mainland-China applicants has
been rapidly moving forward. The cut-off dates of EB3 China has exceeded
that of EB2 China, which is unusual, but reasonable. Some EB2 applicants
and their employers are advised by immigration attorneys to file new I-140
petitions under the EB3 category, without obtaining new permanent labor
certification (“PERM”) from the Department of Labor. They were hoping to
utilize the EB3 visa numbers as they believe I-140 beneficiaries who qualify
a “higher” category may automatically qualify for a “lower” category.
We would like to remind you that this understanding is very wrong, for a
number of reasons.
First, the Immigration and Naturalization Act established EB2 and EB3 as two
different employment-based preference visa categories, with separate
annual allocation of visa numbers. (INA Sec. 203(b)(2) and (3).) The law
permits any unused visas by EB2 applicants to be made available to EB3
applicants, but not the other way around. At this time, there’s unused
visa numbers available in neither category, as both of the two categories
have at least one country of chargeability deemed “oversubscribed”.
Second, most of the EB2 and EB3 I-140 cases require certified PERMs by the
Department of Labor at time of filing. Federal regulations specifies
different qualification criterias for the PERMs supporting the corresponding
I-140 cases. Specifically, for EB2 category, the job offer portion of the
individual labor certification [...] must demonstrate that the job requires
a professional holding an advanced degree or the equivalent or an alien of
exceptional ability (8 C.F.R. Sec. 204.5(k)(4)(i)), whereas for EB3 category
, the job offer portion of an individual labor certification [...] for a
professional must demonstrate that the job requires the minimum of a
baccalaureate degree (8 C.F.R. 204.5(l)(3)(i)).
We believe that a job offer requiring an advanced degree is not inclusive of
a job offer requiring the minimum of a baccalaureate degree. Therefore,
approvals of any new I-140s seeking EB3 category based on PERMs of which the
job offer portions require advanced degree would not be lawful.
The employment-based immigration, especially the PERM process, was created
to protect the legitimate interests of the domestic workforce. To
demonstrate an applicant is qualified for either EB2 or EB3 category, the
applicant and his/her petitioner bears the burden of proof that there are
not sufficient workers who are able, willing, qualified and available to
perform the job, and that the admission of such beneficiary would not
adversely affect wages and working conditions of the workers in the United
States similarly employed (INA Sec. 212(a)(5)). Obviously, an applicant
with a PERM requiring advanced degree filing I-140 petition under EB3
category would be against the purpose of labor certification, as there would
not be sufficient evidence that a US worker with only bachelor's degree
cannot fulfill the petitioner’s offered position.
Third, the USCIS regulations and Adjudicator’s Manual do not permit
submission of I-140 with expired or non-original PERMs, unless it’s an
amendment to an already approved I-140 case to request a different visa
category. At this time, most of the PERMs submitted by those seeking “
downgrade” have exceeded their original validity periods of 180 days. For
this reason alone, USCIS should reject all attempted submission of duplicate
I-140s seeking EB3 visa category with expired or non-original PERMs. Also,
as explained earlier, a PERM supporting EB2 petition do not support a EB3
petition, so the “amendment” path should not work, either.
With all the reasons above,We believe that if an applicant is a beneficiary
of an existing I-140 under EB2 category, he/she must first obtain a new PERM
of which the job offer portion “must demonstrate that the job requires the
minimum of a baccalaureate degree” to file a new I-140.
We are looking forward to hearing the comments from USCIS on this and how
USCIS will process cases of this nature.
