Since June 2013, EB-3 China has been ahead of EB-2 China. This trend will continue during the month of March.
Chinese nationals whose employers have previously filed EB-2 petitions may take advantage of the situation by filing a few I-140 petition based on the PERM Labor Certification used to file their EB-2 petition. This may allow Chinese nationals a faster path to permanent residence (or a “green card”).
Department of Labor (DOL) regulations state that a PERM Labor Certification is valid for 180 days after it has been certified. If an I-140 petition is not filed within the 180-day period after certification, the labor certification may no longer be used to file an I-140.
Where an employer has already filed an EB-2 I-140 petition within the 180-day period, the labor certification may be used again to serve as the basis of an EB-3 I-140 petition as USCIS allows an employer to file an amended petition to request a different visa classification than the classification requested in the previous petition.
It is important for employers to seek the advice of immigration counsel in preparing a new petition based on a previously-used labor certification. Employers should not that their employee (the beneficiary of the new EB-3 I-140) must qualify in the EB-3 category. Employers also should not revoke or withdraw the EB-2 I-140.
Generally, an employer filing an I-140 petition based on a labor certification must include the original certified labor certification issued by the DOL. In the case of a subsequent I-140 petition based on a previously-used labor certification, the new petition will not contain the original labor certification since it would have been previously submitted to U.S. Citizenship and Immigration Services (USCIS). Where a copy of the labor certification is included and not the original, premium processing of the petition is not permitted.
