Question:
My friend is in a very tricky situation.
She got her Labor Certificate approved
awhile back, which has a job requirement
of a Master Degree. However, her
lawyer mistakenly filed her I-140
petition with EB3 and they did not
find out the mistake until long
after they filed her I-485. Since
she is PR China and the cutoff date
for people from China for EB3 is
much earlier than EB2. Her question
is how she can upgrade her category
from EB3 to EB2 without re-filing
her I-485, because she has already
been waiting for quite some time.
I know her situation is quite unique
and tricky. I hope those experienced
and knowledgeable immigration guru
can give her their valuable suggestions.
Answer:
I know her situation is quite unique
and tricky. I hope those experienced
and knowledgeable immigration guru
can give her their valuable suggestions.
Your friend would be well advised
to hire another immigration attorney
to prepare and file another I-140
with just the right wording, and
when it is approved, ask INS to
substitute that petition into the
I-485 application. This will be
a tricky procedure. Your friend
must find the right attorney for
this, probably someone who has had
some experience as a liaison for
the American Immigration Lawyers
Association with the regional Service
Center. She could call the local
AILA chapter for referrals. The
I-485 flows from the approved I-140,
which requested an EB-3 visa.
I believe
(and this is written on the fly
and should not be relied upon, is
not legal advice, your mileage may
vary, and all other disclaimers
thrown in) that, if the ETA 750A
contained a requirement for an advanced
degree (and there was no alternative
requirement in the margins), the
company may return the I-140 approval
notice, file a new I-140 requesting
an EB-2 visa, and upon approval
of that, file a new I-485. However,
she would need to qualify for H-1B
or other nonimmigrant status while
the second I-140 was in process.
Of course, if this was a Section
245(i) adjustment, forget everything
I wrote. In that case, your friend
would be ineligible to adjust status
via a new I-485.
