Q: Can I change the category of an employment-based green card that is currently pending?
A: If you wish to change to a less backlogged employment-based category such as EB-1 or EB-2, you can do so under certain conditions. There is currently a surplus of visa numbers in EB-1 and EB-2, partly due to the large number of unused family-based visas carried over from the previous fiscal year. For example, last year, around 140,000 family-based visas were not utilized and thus rolled over to the employment-based category. Additionally, if EB-5 investor visas go unused, their available numbers can roll down first to EB-1 and then to EB-2, though not to EB-3.
Q: How can I change the category of a pending employment-based green card?
A: If you have been stuck in EB-3 and wish to upgrade to EB-2 (or EB-1) provided you meet the eligibility requirements, you can do so by filing a new petition (or using an already approved one) and requesting a “category change.” If you already have an approved I-140 in a higher category, you can submit Form I-485 Supplement J (485J) requesting that USCIS “transfer” your pending green card application to that approved category. If your I-140 in the new category is not yet approved and is still pending, you can file the new petition with proof of your earlier I-485 receipt. Applicants who have been stuck in EB-3 for a long time may consider upgrading to EB-2 or EB-1 if they meet the relevant requirements.
To benefit from a category change, you must satisfy the following:
- You must still be in valid nonimmigrant status (or at least have a pending I-140 so that you can remain “in line”);
- You must qualify for the new category (e.g., EB-2 typically requires an advanced degree or equivalent, EB-1 has its own specific criteria such as extraordinary ability or managerial/executive qualifications);
- The new category must be “current” or have visa numbers immediately available for your priority date.
USCIS will also check whether the job offer remains valid. If USCIS approves the transfer, the 180-day portability clock for changing employers (porting) essentially restarts from the time of the approval under the new category.
Contact Information
(714) 295-0700
greencardandvisa@gmail.com
KakaoTalk ID: greencards
Attorney K. Choi