Have 2 questions
1- Can Employer file for EB3 during I140 when PERM is approved for EB2?
2.Is EB category decided at PERM stage only? As attorney refuses to file for EB3 stating that PERM is approved based on EB2, is that correct statement ?
This is not EB2 to EB3 downgrade…am filing it for first time …so you say it’s still possible to file in EB 3 even PERM filed as EB2 ?
General understanding is that as USCIS is allowing downgrade from EB2 to EB3 using EB2 PERM, it may allow filing for EB3 based on EB2 PERM. In fact people have successfully filed under EB2 and EB3 using EB2 PERM.
However there have been some discussions and arguments against even allowing downgrade from EB2 to EB3 based on past/expired EB2 PERM.
INA Act established EB2 and EB3 as two different employment-based preference visa categories, with separate annual allocation of visa numbers. (INA Sec. 203(b)(2) and (3).) The law permits any unused visas by EB2 applicants to be made available to EB3 applicants, but not the other way around.
EB2 and EB3 I-140 cases require certified PERMs by the Department of Labor at time of filing. Federal regulations specifies different qualification criterias for the PERMs supporting the corresponding I-140 cases. Specifically, for EB2 category, the job offer portion of the individual labor certification must demonstrate that the job requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability (8 C.F.R. Sec. 204.5(k)(4)(i)), whereas for EB3 category, the job offer portion of an individual labor certification for a professional must demonstrate that the job requires the minimum of a baccalaureate degree (8 C.F.R. 204.5(l)(3)(i)).
However as counter argument, lawyers have debated that if a candidate qualifies and meets EB2 job requirements, he/she also qualifies for EB3 which means they may be allowed to apply under EB3 using EB2 PERM. Here though the catch is, if the job description requires masters degree which only falls under EB2, the same job may not qualify for EB3 as there may be a US person with just Bachelor’s degree qualified for that job which now is contested by a foreign worker by allowing them to apply under EB3. Note that in the recruitment process the employer has to prove that there is no US person available to do the job so they want to hire a foreign worker.
I think this depends on the attorney . If they go by book, they will tell you to file PERM in EB3 before applying for EB3 I140. Many others go ahead and file EB3 I140 using EB2 PERM citing USCIS action for similar approved cases in past.