Can I Hold Both EB2 and EB3 I-140 Approvals?

What if holding two U.S. green card approvals could give you the ultimate backup plan for your immigration future? 

That’s exactly what’s at stake when we talk about having both EB-2 and EB-3 I-140 approvals.

In FY 2022 alone, over 70,000 EB-2 STEM-related petitions were approved, a steep rise from 57,810 in FY 2021. Yet, with backlogs exceeding 240,000 for Indian EB-2 applicants, businesses and professionals alike are seeking flexibility through dual approvals, businesses and professionals alike are seeking flexibility through dual approvals.

In this blog, we’ll discuss whether you can hold both EB-2 and EB-3 I-140s, how it impacts your priority date, and what strategic benefits it offers for employers managing global talent mobility.

Key Takeaways

• Holding approved I-140 petitions in both EB2 and EB3 categories is allowed and offers strategic flexibility for green card filing and priority date protection.
• EB2 visas require advanced degrees or exceptional ability, while EB3 visas cover a broader range of skill levels including professionals and skilled or unskilled workers.
• Priority dates are assigned based on the PERM filing date for most cases, impacting visa bulletin eligibility and adjustment of status timing.
• Dual I-140 approvals enable applicants to file Form I-485 based on the most favorable priority date, helping manage visa retrogressions effectively.
• Filing dual petitions involves careful use of PERM certifications and supporting evidence; premium processing can expedite adjudication.

What Are EB2 and EB3 Visas?

Both EB-2 and EB-3 are employment-based immigrant visas, pathways to a U.S. green card through employer sponsorship (or, in limited cases, self-petition). They differ mainly in qualification level, PERM requirements, and visa-bulletin timing.

EB-2 Visa (Employment-Based, Second Preference)

The EB-2 visa is designed for professionals with advanced qualifications or exceptional ability whose skills significantly contribute to the U.S. economy, culture, or national interests. It’s one of the most common employment-based green card categories for high-skill roles.

Applicants typically fall into one of these three groups:

• Advanced degree professionals holding a Master’s or higher, or a Bachelor’s plus at least five years of progressive, post-degree experience.
• Individuals with “exceptional ability” in the sciences, business, or arts, proven through applicants typically fall into one of these three groups:

EB-3 Visa (Employment-Based, Third Preference)

The EB-3 visa is designed for foreign nationals filling professional, skilled, or other worker positions in the U.S.

It provides a path to permanent residency for individuals whose roles may not require the advanced qualifications needed for EB-2 but still contribute essential skills to the workforce. A PERM labor certification is always required, as the employer must prove there are no qualified U.S. workers available for the role.

Applicants typically belong to one of these three subcategories:

• Professionals: Jobs that require at least a bachelor’s degree (or foreign equivalent) as a minimum entry requirement.
• Skilled workers; Positions requiring two or more years of relevant experience or training.
• Other workers (unskilled): Jobs that need less than two years of experience or on-the-job training.

Now that you understand the essential differences between EB2 and EB3 visas, the next step is to grasp how your immigrant petition (I-140) works and how priority dates are established, as these elements directly impact your green card timeline.

What Is An I-140 And How Priority Dates Are Assigned (Perm Vs Non-Perm)

The Form I-140, Immigrant Petition for Alien Worker, is a crucial step in the employment-based green card process. It serves as the formal petition by an employer to classify a foreign national under a specific employment preference category (like EB2 or EB3) for permanent residency.

Key roles of I-140 petition:

• Confirms that the foreign worker qualifies for the offered job per U.S. immigration standards.
• Establishes the immigrant’s place in line for visa processing by assigning a priority date.
• Allows the worker to apply for adjustment of status (Form I-485) once the priority date becomes current.

What is a Priority Date?

The priority date is essentially the applicant’s queue number in the visa backlog. It determines when they can proceed with the final steps toward a green card, based on visa category and country of chargeability.

Here’s a detailed explanation of how priority dates are assigned:

With a clear understanding of I-140 petitions and priority dates, the natural next question is whether you can simultaneously hold approvals for both EB2 and EB3 categories, and what this means for your immigration options.

Can You Have Approved I-140 Petitions in Both EB2 and EB3 Categories at the Same Time?

The answer is yes, U.S. immigration law allows foreign nationals to have multiple approved I-140 petitions concurrently, including in both EB2 and EB3 categories. This flexibility can be utilized strategically to safeguard priority dates and create options for timing adjustment of status.

There is no USCIS rule prohibiting a single beneficiary from having more than one approved I-140, even from the same or different employers.

Common Scenario:

• An individual may file an EB2 petition with an advanced degree classification and simultaneously maintain an EB3 petition for the same or a similar position.
• Many applicants file this way to protect themselves against visa bulletin retrogression or uncertainties in processing times.

How Dual Approvals Affect Your Adjustment Of Status (I-485), Visa Bulletin Movement, And Visa Retrogression

Holding approved I-140 petitions in both EB2 and EB3 categories provides significant strategic advantages when it comes to filing your Form I-485 (Application to Register Permanent Residence) and navigating complex visa bulletin dynamics.

Here’s how dual approval benefits when it comes to registering for permanent residency:

• You can file your green card application (I-485) based on whichever priority date is current, EB2 or EB3, according to the monthly visa bulletin. If one category retrogresses, you can use the other.
• You keep the earliest priority date from either approval, which determines your place in the green card queue and speeds up processing.
• Visa retrogression happens when demand exceeds supply, causing delays. Having dual approvals lets you switch between categories to avoid long wait times and maintain work authorization.

Also Read: Green Card Solution for an EB-2 NIW Dependent

Contact the Law Offices of Sweta Khandelwal to select the best visa option based on your professional background and investment plans.

Having seen the benefits of holding both EB2 and EB3 I-140 approvals, the next step is understanding how to properly file these dual petitions to maximize your immigration advantage.

How to File Dual EB2 and EB3 I-140 Petitions?

Filing dual I-140 petitions under both EB2 and EB3 categories requires careful planning and strict compliance with USCIS and Department of Labor (DOL) regulations.

Here’s a focused, practical guide on how to do this effectively:

Step 1: Determine Eligibility and Job Classification

• Confirm that you qualify for both EB2 and EB3 categories based on your education, work experience, and the job requirements.
• Identify whether the same or different PERM labor certifications will be used for each category. Often, employers use one PERM to support both EB2 and EB3 petitions by upgrading or downgrading the job requirements.

Step 2: Prepare and File PERM Labor Certification(s)

• File a PERM labor certification that meets the EB3 minimum job requirements but also supports EB2 by documenting your advanced qualifications in the petition. This is common when upgrading from EB3 to EB2.
• Submit distinct PERM applications if job roles or requirements vary significantly between EB2 and EB3 positions. This ensures compliance but increases processing time and cost.

Step 3: File I-140 Petitions with USCIS

• File two separate Form I-140 petitions, one under EB2 and one under EB3, referencing the appropriate PERM(s).
• Include supporting evidence tailored for each petition showing eligibility: degrees, experience letters, job descriptions, and any exceptional ability documentation for EB2.
• Ensure accurate and consistent priority date claims, usually based on the PERM filing date.

Step 4: Utilize Premium Processing (Optional but Recommended)

• USCIS allows premium processing for faster adjudication of I-140 petitions.
• Filing premium processing on one or both petitions can reduce wait times and improve planning flexibility.

Step 5: Monitor Petition Status and Visa Bulletin Updates

• Track USCIS I-140 processing times and respond promptly to any Requests for Evidence (RFEs).
• Watch the monthly Visa Bulletin to determine which category’s priority date is current for filing adjustment of status (I-485).

Also Read: Can I Have EB-2 and EB-3 at the Same Time?

If your EB-2 is stuck behind a slow visa bulletin, a targeted downgrade to EB-3 can be the tactical move that gets your green card sooner, here’s exactly how to do it, step-by-step.

How to Downgrade From EB-2 To EB-3 Using Approved I-140s And PERMs

Downgrading from EB2 to EB3 is a common immigration strategy, especially when EB3 priority dates are current but EB2 is retrogressed. This process lets applicants take advantage of earlier visa availability while retaining important benefits from their EB2 petition.

Downgrading refers to using an approved EB2 I-140 petition’s priority date to file or proceed with an EB3 petition or adjustment of status application. Essentially, you shift from the higher-preference EB2 to the lower-preference EB3 category without losing your place in the visa queue.

There are two common downgrade scenarios:

• Same PERM → Second I-140 (preferred): Employer uses the same DOL PERM (if the PERM’s job requirements legitimately cover both EB-2 and EB-3) to file a new EB-3 I-140. Faster and avoids new PERM recruitment.
• New PERM → New EB-3 I-140: Employer files a fresh PERM written for EB-3 requirements, then files I-140. Use when PERM cannot legitimately support EB-3.

Documents to include with EB-3 I-140:

• Copy of PERM and PERM audit file (if applicable).
• Copy of approved EB-2 I-140 (if previously approved).
• Employer support letter showing job, salary, and tying PERM to EB-3 role.
• Beneficiary’s degree, transcripts, credential eval (if foreign).
• Employment verification letters showing required experience.
• If claiming PD retention: clear cover letter citing earlier approved I-140 and request to retain the earliest PD.

Now that we have discussed the downgrade scenario and the documents to include, here’s a step-by-step downgrading process:

Before you file again, check whether the job (and the paperwork) really changed — that’s the single question that decides if you must start PERM over.

When a New PERM is Required vs. When It Can Be Re-used

The PERM labor certification is a foundational document proving no qualified U.S. worker is available for the job. Its validity and reusability are tightly regulated to ensure compliance and smooth USCIS processing.

When Can a PERM Labor Certification Be Reused?

• Same Employer, Same or Similar Job: A PERM can be reused if the new job or petition is with the same employer and the job duties, requirements, and location remain essentially the same or are very similar.
• EB2 to EB3 Downgrade: A common scenario where the same PERM supports both EB2 and EB3 petitions, provided the EB3 job description is a subset or less restrictive than EB2.
• Priority Date Retention: Reusing the PERM helps retain the priority date and avoids restarting the lengthy labor certification process.

When Is a New PERM Labor Certification Required?

• Change in Employer: A new employer must obtain a fresh PERM certification to sponsor a foreign worker.
• Significant Job Changes: If the new job has substantial differences in duties, requirements, or location compared to the certified PERM, a new PERM is mandatory. Examples include:
  • • Different job title or classification
    • Different minimum education or experience requirements
    • Change in geographic worksite that affects labor market conditions
• Expired or Invalid PERM: If the PERM certification has expired (typically after 180 days if not used for filing the I-140) or was revoked, a new one is necessary.

After exploring the complexities and strategic benefits of dual EB2 and EB3 I-140 filings, choosing the right legal partner to guide you through the process becomes essential for success.

Why Choose The Law Offices of Sweta Khandelwal?

Understanding U.S. immigration law requires precision, experience, and personalized attention. The Law Offices of Sweta Khandelwal stand out by delivering tailored legal solutions that address the unique circumstances of each client, whether you are a skilled professional, investor, or business owner.

Some other reasons why you should choose the law offices of Sweta Khandelwal:

• Specialized Immigration Knowledge: Focused solely on immigration law with up-to-date USCIS insights.
• Tailored Client Service: Customized strategies for your unique situation with clear communication.
• Comprehensive Support: From labor certification to naturalization, every step handled expertly.

Ready to make your immigration process smoother and more successful?

Contact The Law Offices of Sweta Khandelwal today for a personalized consultation.

Final Thoughts,

Managing the U.S. immigration process, especially with dual EB2 and EB3 I-140 approvals, offers strategic advantages but requires careful planning and legal expertise. Understanding visa categories, filing procedures, priority dates, and the nuances of downgrading or reusing PERM certifications can significantly impact the success and timing of your green card journey.

Dual approvals provide flexibility to adjust status based on the most favorable priority date and help mitigate risks from visa retrogressions.

Strong legal guidance is essential to maximize these benefits while avoiding costly mistakes.

Connect with Sweta Khandelwal to get expert assistance tailored to your unique immigration needs.

FAQs

1. Can I upgrade from EB3 to EB2 using the same PERM labor certification?

No. Upgrading from EB3 to EB2 generally requires a new PERM certification that supports the higher EB2 job requirements, except in cases where a National Interest Waiver applies.

2. Does filing dual EB2 and EB3 I-140 petitions affect my current work visa (like H-1B)?

No. Dual I-140 filings do not impact your existing nonimmigrant work visa status, such as H-1B, but having an approved I-140 can help extend your H-1B beyond usual limits.

3. Can I keep my EB3 priority date if I file a new EB2 I-140?

Yes. USCIS allows priority date retention, so you can use your earlier EB3 priority date for the new EB2 petition to avoid losing your place in the queue.

4. How long does it take to approve dual I-140 petitions?

Each I-140 petition is processed separately, usually taking 6 to 8 months, though premium processing can shorten this to 15 calendar days.

5. What happens if one of my dual I-140 petitions is denied?

If one petition is denied, the other still stands independently, so you can continue your green card process based on the approved petition without losing your priority date.