Interfiling EB-2 and EB-3 I485

What is Interfiling, and How do I do it for EB3 and EB2?

Interfiling refers to the process of changing the preference category of a pending immigrant visa petition from one category to another. In the context of EB-3 (Employment-Based Third Preference) and EB-2 (Employment-Based Second Preference), interfiling refers to the process of upgrading a pending EB-3 petition to EB-2.

Interfiling from EB-3 to EB-2 is possible, but it is not a guaranteed process. The decision to approve or deny an interfiling request is at the discretion of the United States Citizenship and Immigration Services (USCIS).

To request an interfiling from EB-3 to EB-2, the employer or the individual who filed the original EB-3 petition would need to submit a new Form I-140, Immigrant Petition for Alien Worker, under the EB-2 category, along with the necessary evidence and fees. The new petition should also include a request for the withdrawal of the original EB-3 petition.

The USCIS will review the new EB-2 petition and consider factors such as the individual’s qualifications, the availability of workers in the occupation, and the impact of the individual’s employment on the U.S. economy. If the USCIS approves the new EB-2 petition, the individual’s priority date will be the date the new EB-2 petition was filed, rather than the date the original EB-3 petition was filed.

It is important to note that the EB-2 category has a higher priority than EB-3 and as a result, EB-2 petitions are generally processed more quickly than EB-3 petitions. However, the EB-2 category also has more stringent requirements, including that the individual must have a Master’s degree or higher, or have exceptional ability in their field.

Additionally, an individual can’t apply for EB-2 from EB-3 if the EB-3 priority date is current. It is because priority date is the date when the Labor Certification was filed and if it is current it means that the EB-3 category is open and the individual can apply for adjustment of status or consular processing.

In conclusion, Interfiling from EB-3 to EB-2 is possible but it is not guaranteed, the USCIS has the discretion to approve or deny the request. The employer or the individual who filed the original EB-3 petition would need to submit a new Form I-140, Immigrant Petition for Alien Worker, under the EB-2 category, along with the necessary evidence and fees and request for the withdrawal of the original EB-3 petition. The EB-2 category has a higher priority than EB-3 but also more stringent requirements, and the individual can’t apply for EB-2 if the EB-3 priority date is current.

How do I Qualify for Interfiling?

Eligibility for interfiling from EB-3 to EB-2 depends on the specific circumstances of the individual’s case and the requirements for each preference category. In general, individuals who are in the EB-3 category are eligible to request an upgrade to the EB-2 category if they meet the following criteria:

  1. Educational Qualification: The individual must have a Master’s degree or higher from a U.S. university or the foreign equivalent, or have exceptional ability in their field.
  2. Job Requirements: The individual’s job must require a Master’s degree or higher, or exceptional ability, as determined by the Department of Labor’s Standard Occupational Classification (SOC) system.
  3. Labor Certification: The individual must have a pending or approved labor certification application in the EB-3 category.
  4. Priority Date: The EB-3 priority date must not be current, meaning that the EB-3 category is not currently oversubscribed and the individual can’t apply for adjustment of status or consular processing.
  5. No Pending Application or Appeal: The individual must not have a pending application or appeal with the USCIS or the Executive Office for Immigration Review (EOIR) at the time of signing the form.

It is worth noting that even if an individual meets the above criteria, the USCIS has the discretion to approve or deny the request for interfiling. The USCIS will consider factors such as the individual’s qualifications, the availability of workers in the occupation, and the impact of the individual’s employment on the U.S. economy when making its decision.

It’s also important to note that even if the USCIS approves the interfiling, the individual will not be able to adjust their status or consular processing until the EB-2 priority date is current.

How do I convert an EB3 I-485 to an EB2 I-485 for Faster Processing?

It is possible for an individual to convert their pending EB-3 (Employment-Based Third Preference) I-485, Application to Register Permanent Residence or Adjust Status, to an EB-2 (Employment-Based Second Preference) I-485 for faster processing, but it is not a guaranteed process.

The decision to approve or deny a conversion request is at the discretion of the United States Citizenship and Immigration Services (USCIS). To request a conversion, the individual would need to submit a new Form I-140, Immigrant Petition for Alien Worker, under the EB-2 category, along with the necessary evidence and fees. The new I-140 petition should also include a request to convert the pending EB-3 I-485 to EB-2.

The USCIS will review the new EB-2 I-140 petition and consider factors such as the individual’s qualifications, the availability of workers in the occupation, and the impact of the individual’s employment on the U.S. economy. If the USCIS approves the conversion, the individual’s priority date will be the date the new EB-2 I-140 petition was filed, rather than the date the original EB-3 I-140 petition was filed.

It is important to note that EB-2 category has a higher priority than EB-3, and as a result, EB-2 petitions are generally processed more quickly than EB-3 petitions. However, the EB-2 category also has more stringent requirements, including that the individual must have a Master’s degree or higher, or have exceptional ability in their field. Additionally, the individual must meet the EB-2 criteria, including having a job that requires a Master’s degree or higher, or exceptional ability, as determined by the Department of Labor’s Standard Occupational Classification (SOC) system.

It is also important to note that even if the USCIS approves the conversion, the individual will not be able to adjust their status or consular processing until the EB-2 priority date is current.

In summary, it is possible for an individual to convert their pending EB-3 I-485 to an EB-2 I-485 for faster processing, but it is not guaranteed process. The individual would need to submit a new Form I-140, Immigrant Petition for Alien Worker, under the EB-2 category, along with the necessary evidence and fees. The USCIS will review the new EB-2 I-140 petition and consider factors such as the individual’s qualifications, the availability of workers in the occupation, and the impact of the individual’s employment on the U.S. economy. However, it is important to note that EB-2 category has more stringent requirements and meeting the EB-2 criteria and the individual will not be able to adjust their status or consular processing until the EB-2 priority date is current.

What is I-485

Form I-485, Application to Register Permanent Residence or Adjust Status, is a form used by individuals who are already in the United States and wish to apply for permanent resident status, also known as a “green card.”

This form is used by individuals who are eligible to adjust their status to that of a permanent resident because they have a valid offer of employment or because they are the spouse or child of a U.S. citizen, among other reasons.

The I-485 application package typically includes the following forms:

  • Form I-485, Application to Register Permanent Residence or Adjust Status
  • Form I-485A, Supplemental Information for Spouse of Principal Applicant
  • Form I-765, Application for Employment Authorization
  • Form I-131, Application for Travel Document
  • Form I-864, Affidavit of Support
  • Form I-693, Report of Medical Examination and Vaccination Record
  • Other forms and documents, such as copies of birth certificates, marriage certificates, and police certificates, depending on the individual’s specific circumstances

Once the application package is complete, it must be submitted to the appropriate United States Citizenship and Immigration Services (USCIS) service center for processing. The processing time for an I-485 application varies depending on the individual’s specific circumstances, and on the workload of the service center.

It’s important to note that the I-485 application is not a guarantee of permanent resident status, and the USCIS has the discretion to approve or deny the application based on the individual’s qualifications and the requirements of the immigration laws and regulations.

In summary, Form I-485, Application to Register Permanent Residence or Adjust Status, is a form used by individuals who are already in the United States and wish to apply for permanent resident status. The form is used by individuals who are eligible to adjust their status because they have a valid offer of employment or because they are the spouse or child of a U.S. citizen, among other reasons. The application package must be submitted to the appropriate USCIS service center for processing, the processing time varies depending on the individual’s specific circumstances and workload of the service center. The application is not a guarantee of permanent resident status, the USCIS has the discretion to approve or deny the application based on the individual’s qualifications and the requirements of the immigration laws and regulations.

What is the EB-2 and EB-3 Processing Times?

The processing time for Employment-Based Second Preference (EB-2) and Employment-Based Third Preference (EB-3) petitions can vary depending on various factors such as the individual’s qualifications, the availability of workers in the occupation, the impact of the individual’s employment on the U.S. economy, and the workload of the United States Citizenship and Immigration Services (USCIS) service center that is processing the petition.

EB-2 petitions are generally processed more quickly than EB-3 petitions because EB-2 has a higher priority. According to the USCIS website, as of 2021, the processing time for EB-2 petitions ranges from 5 to 14 months. The processing time for EB-3 petitions ranges from 10 to 24 months.

It is worth noting that the processing times posted on the USCIS website are estimates and may vary depending on the specific circumstances of the case and the workload of the service center. The processing times also change regularly, depending on the demand and the operational capacity of the service centers.

It’s also important to note that the priority date is the date when the Labor Certification was filed, once the priority date is current, the individual can apply for adjustment of status or consular processing. The priority date is determined by the U.S. Department of State’s Visa Bulletin and the cut-off date can change each month.

In summary, the processing time for EB-2 and EB-3 petitions can vary depending on various factors and the workload of the USCIS service center, but in general EB-2 petitions are processed more quickly than EB-3 petitions. The processing times posted on the USCIS website are estimates and may vary depending on the specific circumstances of the case. The EB-2 petitions processing time ranges from 5 to 14 months and the EB-3 petitions processing time ranges from 10 to 24 months, the processing times are subject to change regularly and it is important to check the priority date on the Visa Bulletin before filing the application.