Question: I have an approved EB-3 I-140 with Company A, based on an LC filed in 2005. My country of birth is India so the backlog leads me to believe I will have to wait many years to get my green card. I have started working in a new position with Company A. Can they file another LC for me, under the EB-2 category? And then can I retain my priority date?
Answer: Filing a second labor certification with the same employer might be appropriate in several situations. A change to a different occupation classification as defined by the Department of Labor is one event that would require filing a second labor certification. In addition, a second labor certification might be justified when (1) the first labor certification was an EB3; (2) you qualified for EB2 at the time you began working in the current occupation; (3) your manager approves EB2 requirements; and (4) you experienced an objective change in the terms of employment such that EB2 qualifications are now required for the job. The objective change may consist of a promotion or a new work assignment that requires higher qualifications. Finally, as long as each I-140 would be accurate at the time of filing. You are entitled to the earliest priority date under the regulation 8 CFR 204.5(e).
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