EB3 to EB2 upgrade or Interfile option

Hi I had an approved I-140 on EB-2 with PD Feb 23rd 2015 with my previous employer. But my current employer filed it on EB-3 porting the same PD. Recently my EB3 I-140 got approved with my current employer.

If my PD becomes current in EB-2 category in upcoming visa bulletins,

  1. Should I ask my current employer to upgrade or interfile ?
  2. To upgrade, should we file I-140 in EB2 (new) & I485 ? or should we start from PERM?
  3. To interfile just an I485 is needed ? or should we put new I-140 as well?

Please help. Thanks.

To upgrade from EB3 to EB2 you need approved EB2 PERM. For interfiling you need approved I-140 in EB2 from current employer.
So if your current employer who is sponsoring your GC never filed EB2 PERM and I-140, you cant upgrade or interfile. You will need to start the EB2 PERM process from scratch unless your old employer is ready to file your AOS and is still able to offer you the green card job that was listed in the EB2 PERM and I-140 from them.

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My Immigration Team said, PERM is independent on the category (EB-2 or EB-3) and same PERM can be used to file EB-2 I-140 or EB-3 I-140. Isn’t right ?

While its true that EB category is not defined in the PERM, your employer states minimum job requirements in terms of education and experience required for the PERM job in the LC which in turn dictates the EB category in the I-140.
Generally if the PERM was used to file I-140 under EB3, it may be difficult to justify using it for EB2 later on, unless your employer thinks your PERM content supports EB2 eligibility.
Talk to your employer’s immigration lawyer.

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Thanks for the suggestion.

My employer’s immigration layer said, my PERM is eligible for EB2 as well. They are ready to do upgrade filing with new I-140 in EB2 + I485 together. My question is, can this upgrade petition be filed once my PD becomes current in Date of Filing chart or Final Action Chart?

Yes all three can be filed concurrently under DOF ( if allowed by USCIS) or FAD charts.

Thanks for your quick response.