Can I change my I-140 from the EB3 category to the EB2 category?
I have an H1-B. I also have a greencard application which is pending based upon an I-140 that was filed under the EB3 category, with a priority date from 2006. The I-140 was filed for the position of Supervisor when I only had a Bachelors degree. I have since earned an MBA and have been promoted to the position of Manager. Am I now eligible to change my application from the EB3 category to the EB2 category since now I have a Master’s degree and a different role within the company?
Immigration Answer Man:
While you cannot change the category of the current petition, it may be possible for your company to file a new PERM application and immigrant petition (I-140) for you under the EB2 category.
The question is whether the new position requires an MBA or the equivalent. Not only must you have a Masters degree or the equivalent, but the position must also require your Masters degree as a minimum qualification for the position. So if your position requires an MBA, it may be possible for your company to reapply for you under the EB2 preference category. But if you did not receive the MBA until after you started in the new position you are going to have a hard time showing that the MBA was required for the position, since you did not have the MBA when you started in the position.
Even if the new position is eligible to be filed under the EB2 category, since the original PERM application was filed under the EB3 category, your company will have to go through the PERM process again advertising the new position with the requirement of an MBA or the equivalent for the position. But if the original I-140 petition has been approved, you should be able to retain the priority date from the original petition to be counted toward the new petition.