Question: I have 13 years of teaching experience, before moving to the US. My employer filed my Labor Certification (PERM) application and I-140 under the EB3 category with a priority date in 2009. Now, I am planning to port from EB3 to EB2. Is this possible with the same employer? My previous lawyer did not include my 11 years of experience. He just put my 2 years of experience in China. Also, what would happen to my eldest daughter, who will turn 21 in a couple of years, if I just wait for my 2009 priority date to become current?
Answer: Your current employer may indeed file a new PERM with EB-2 requirements, but not only do you have to be qualified, the position offered must also qualify. 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).
For more information, here is a link to my blog post from February 2011, including an explanation of the requirements, frequently asked questions, and a questionnaire to help you get started:
http://ryvinimmigrationblog.blogspot.com/2011/02/reducing-green-card-wait-times-by-years_12.html
With respect to your second question, the answer might fall under the Child Status Protection Act, and I don't have enough information, nor do I have enough experience in this area of immigration law to give you a quick answer. Sorry about that.
Best of luck and let me know if my firm may be of further assistance to you.
Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com
The Immigration Consultant Diploma program is designed to prepare students for a wide range of opportunities within the immigration consultancy field. During the duration of the program, students learn both the theoretical and practical aspects of the profession required to advise and represent potential immigrants before Citizenship and Immigration Canada, the Immigration and Refugee Board, and the Canadian Border Services Agency.
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