EB2 “Upgrades” – Priority Date Retention and Online Degrees

With the ongoing backlog in the employment-based, third preference (EB3) category, many people look forward to using the strategy commonly referred to as an EB3-to-EB2 “upgrade.” The U.S. Citizenship and Immigration Services (USCIS) recently confirmed a long-term favorable policy, which facilitates this strategy. It was also confirmed that, in some instances, online degrees are acceptable as educational credentials.

Background: EB3 to EB2 Upgrades

There are many foreign nationals who find themselves waiting for years to obtain permanent residence (commonly referred to as “green card”) status in the EB3 category. The solution for some may lie in finding an employer to file a new green card case in the employment-based, second preference (EB2) category. The key to this strategy is retaining a priority date from an earlier permanent residence EB3 case for the new EB2 case. This can be requested if there was an approved I-140 employer petition for the earlier green card filing.

[More information about EB3 to EB2 upgrade procedures can be found in our NewsBrief, Considerations for EB3 to EB2 “Upgrade” (04.Feb.2014).]

I-140 Revocation Concerns

A frequent question from those considering an EB3-to-EB2 upgrade is whether the EB3 petitioning employer can create problems. Specifically, individuals in this situation want to know whether the EB3 employer can withdraw the earlier approved I-140 petition.

Under the law, the I-140 petition may be withdrawn by the employer who filed it, should the employer so choose. The I-140 may be withdrawn even after it has been approved, and even if it was approved several years before. The employer has this option until permanent residence that is based on that employer’s filings has been approved. A more pressing question, however, is whether this revocation will make a difference in efforts to complete an EB3-to-EB2 upgrade, namely the employee’s ability to transfer or retain the earlier priority date.

General Policy on Priority Date Retention

The long-standing Legacy INS and USCIS policy on retention of EB priority dates after I-140 revocation is favorable. The policy allows individuals to keep their (older) priority dates from approved I-140 petitions even after revocation in most instances. However, some questions arose regarding the continuation and uniform application of this policy.

Priority Date Retention Even After I-140 Revocation

The USCIS advised on April 12, 2012 that the Texas (TSC) and the Nebraska Service Centers (NSC) have had “robust” conversations on this topic with Service Center Operations. TSC and NSC want to act in a consistent manner. Both will allow for priority date retention when a new I-140 is filed, even if a prior employer has revoked the earlier I-140.

Exception to Priority Date Retention

The older priority date will be retained, as long as the earlier-dated I-140 was not revoked by the government for reasons of fraud or misrepresentation. With this confirmation of policy on the part of the service centers, there should not be a risk that a former employer will cause the loss of a priority date simply by withdrawing an approved I-140 after an employee leaves.

Acceptance of U.S. Online Degrees

For some, the use of the EB3-to-EB2 upgrade strategy requires obtaining additional education. This can pose difficulties for those who must balance the desire to gain additional education and degree/s with the need to maintain employment. It is often much easier to strike this balance by taking online courses for all or part of the educational requirements.

Given the recent controversy over online courses for foreign students, the USCIS was asked whether online degrees from accredited U.S. universities are acceptable for EB2 purposes. The USCIS confirmed that degrees from accredited U.S. universities will be accepted and, further, acknowledged that many major universities are providing online courses.

MurthyDotCom readers have previously been provided with some guidance regarding the selection of U.S. schools in the immigration context for students. Our NewsBrief, Back to School: Considerations for U.S. Education (06.Aug.2010), contains some helpful guidance for those considering the EB3-to-EB3 upgrade option.

Conclusion

While not everyone in the EB3 category is be able to benefit from an EB2 upgrade, it is a viable strategy for many. The confirmation of the policy on priority date retention, as well as the option to obtain an online degree from an accredited U.S. university, serve to facilitate the possibility to upgrade to EB2 for many individuals. Those who have questions about this strategy, and whether it could be an option for them, may wish to consult with a knowledgeable and experienced attorney at the Murthy Law Firm.

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