EB-3 Upgrade to EB-2 Approved in Two Months

Year: April 2019
Applicant: Mr. Zhao
Country/Region: China
Application Category: EB-3 to EB-2
Duration: two months

Difficulties
– Guests are very concerned about losing their legal status due to the impending expiration of their H-1B in a few months.
– The relationship between the client’s I-140 employer company A and H-1B employer company B is complicated, and although they are part of the same group, they have gone through various matters such as name change, shareholder change, address change, etc. The complexity of the documents is the most complicated of all I-140 petitions we have handled.
– The eagerness of our guests to file their I-485 green card applications as soon as possible, leaving us with very limited time to prepare.
– Different requirements for education and work experience in EB-2 and EB-3 applications, with the common risk of downgrading from EB-2 to EB-3 and vice versa.
– Initial expedited processing denied due to transfers between USCIS processing centers.
– Request for Fulfillment (RFE) from USCIS due to microflaws adds to the stress of the client.

Background 
Mr. Zhao, a pharmacist, has a warm smile, service orientation, love for his work, and willingness to help others, which makes patients feel like they are coming to the pharmacy. Mr. Zhao’s EB-3 visa application was approved many years ago and he was only waiting for his priority date to apply for his I-485 green card, but at this time, the pharmacist was worried about his H-1B expiring and changing employers. With many questions and concerns, Mr. Zhao turned to Joseph Zang, an immigration expert at Tsang & Associates, for help.

Keys to Success
According to the U.S. Department of State’s Visa Bulletin, EB-2 has always been ahead of EB-3 in terms of priority date advancement, but since late 2015, EB-3 has been faster than EB-2, so the EB-3 professional category was applied for when the I-140 petition was filed. However, since the end of last year, EB-2 is again advancing faster than EB-3. In order to help Mr. Zhao get his green card faster, after discussing with Mr. Zhao, he agreed to apply for the option of upgrading his immigration category. However, there were still risks, and many people were concerned that they might lose their original EB-3 petition. After Mr. Zang’s team and the client analyzed the pros and cons, as well as the possible risks, Mr. Zhao firmly decided to upgrade his EB-3 to EB-2. Within two weeks, we had Mr. Zhao’s documents in order, including the attorney letter, employer letter and other relevant supporting documents and submitted the application to USCIS.

In order to put Mr. Zhao’s mind at ease, we filed an expedited application based on Tsang & Associates’ experience with previous successful cases to obtain an early approval of the petition. However, two weeks later, we received a notice from USCIS denying the expedited application because the original labor certification required for the application was at another processing center and had to be transferred. USCIS returned the check with a letter informing us that we had the option to resubmit the application within 30 days. We prepared an updated packet of documents and resubmitted the application on time after 30 days. The expedited process was finally successful and we received notification from USCIS that the expedited application was accepted within a month.

However, he soon received an RFE from USCIS requesting clarification of his employer’s Federal Employer Tax Identification Number (FEIN). Surprised by the RFE, Mr. Zhao was at a loss as he feared that his legal status and career were at stake. We reassured Mr. Zhao that the retroactive issue could be resolved quickly with the cooperation of his employer. Because the client’s I-140 employer is Company A and the H-1B employer is Company B. Although the two companies are under the same group, the names, shareholders, and businesses of both companies are very similar, the immigration officer was confused and disoriented between Company B, where he is working now, and Company A, where he will be working in the future. Although a one-page letter clarifying the Federal Employer’s Tax Identification Number (FEIN) was all that was needed, we responded to the USCIS supplemental notice within a week with a full set of supporting data to ensure that USCIS understood that these were two different companies, not only to clarify the FEIN issue, but also to further explain Mr. Zhao’s job duties and his employer’s ability to pay him. This is just one of the many cases in which our firm, Tsang & Associates, has provided excellent service by anticipating potential USCIS challenges.

Outcome
Within a week of responding to the USCIS Notice of Retroactive Filing, Mr. Zhao’s EB-2 was approved. Mr. Zhao was very happy and said that thanks to the expedited application strategy and timely response from our firm Tsang & Associates, the entire process (including the initial consultation, filing of the petition for elevation, filing of the accelerated petition twice, responding to the supplemental documents, and until approval) was successfully completed so quickly and he has asked Joseph Tsang’s team to proceed with the I-485 adjustment of status application. We are very proud to have given Mr. Zhao peace of mind and confidence during such a stressful application process.

Lawyer Joseph Tsang commented:
EB-2/EB-3 (professional) career candidate immigrant category, mainland China-born applicants began in December 2015, the EB-3 immigrant scheduling advancement speed gradually crossed EB-2, which lasted for nearly 3 years, during which even once EB-3 was 23 months faster than EB-2, so within a time, EB-2 applicants who originally had a master’s degree and above Therefore, for a period of time, EB-2 applicants who originally had a master’s degree or higher have requested to downgrade to EB-3 in order to obtain a green card faster and with a faster I-485 adjustment of status. However, since December 2018, EB-2 has gradually outpaced EB-3, and the gap is getting bigger and bigger. In this case, Mr. Zhao originally had an advanced degree, and the Zangdikai legal team decided to help him upgrade to EB-2 after evaluating his original labor certification.