Dear Sophie: Questions about green cards and EB-2 priority dates

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Dear Sophie,

I’ve been on an H-1B since 2011. I have an EB-2 I-140 approved with a priority date in April 2015. I’m Indian by birth, so I know I’m going to be waiting a long time to get a green card.

As an experienced cybersecurity professional, I think I could qualify to apply for an EB-2 NIW.  Will there be any benefit from applying for an EB-2 NIW now?

— Idealistic from India

Dear Idealistic,

Thanks for reaching out and for your patience with the U.S. immigration system!

The green card line for the EB-2 green card category for individuals born in India has made significant advancements in the past few months. In addition, U.S. Citizenship and Immigration Services (USCIS) has stated that it will likely use all of the available employment-based green cards for the fiscal year 2022, which ends on September 30, 2022. That could mean continued advancements in the EB-2 category!

The latest Visa Bulletin shows that individuals born in India can file their immigrant visa applications for an EB-2 green card at a U.S. Consulate abroad if their priority date is on or before January 1, 2015. For domestically-filed green cards, USCIS announced that for employment-based filings, I-485s can be filed based on the same priority date listed in the “Final Action Dates Chart” in the Visa Bulletin, so it’s the same: January 1, 2015 as well. You’re so close!

However, since you already have the EB-2 NIW priority date, assuming the I-140 got approved or an offer that is still valid (likely at your current employer), you would not gain any advantage by applying for an EB-2 NIW at this point.

A composite image of immigration law attorney Sophie Alcorn in front of a background with a TechCrunch logo.

Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)

Here’s why:

  • You’re nearing the front of the green card line anyway.
  • The EB-2 and EB-2 NIW (National Interest Waiver) green cards are in the same second preference category, and have the same cut-off date.

If your employer had sponsored you for an EB-2 NIW at the outset, you and your employer could have avoided the lengthy PERM labor certification process.

For additional insight into the green card process, take a look at the following questions, too.

You’re almost there!

— Sophie

Dear Sophie,

I have an approved I-140 for my EB-2 NIW green card process. I’m just waiting for my priority date to become current. I am planning to also file an EB-1A green card petition. What happens to my EB-2 NIW status if my EB-1A petition is rejected?

— Eager Engineer

Dear Eager,

Many people petition for two different green cards at the same time, usually the EB-1A extraordinary ability green card and EB-2 NIW (National Interest Waiver) green card, to increase the chances of getting a green card and getting it faster.

Although the qualifying bar for an EB-1A green card is higher than any other employment-based green card, the wait time is the shortest. According to the latest Visa Bulletin, there is currently no wait for a green card number to become available for the EB-1 category. Individuals who were born in India or China will benefit greatly from this.

To answer your question, a rejected EB-1A I-140 is unlikely to affect a concurrent EB-2 NIW adjudication, but please talk to your attorney about your situation. However, if your EB-1A I-485 (Application to Register Permanent Residence or Adjust Status) is denied, that could have implications for your EB-2 NIW I-485 application, depending on the reason for the denial.

The I-485 requires proof of:

  • The green card candidate’s identity.
  • Info about the candidate’s entry into the U.S.
  • Immigration status.
  • Employment history.
  • Criminal history.
  • Results of an official medical examination.

Keep in mind that USCIS will issue a request for evidence (RFE) or a notice of intent to deny (NOID) before issuing an outright denial, enabling you to correct the record, address any issue with additional evidence or otherwise take steps to avoid a denial.

Also read the next question, as it is related to yours.

Hang in there!

— Sophie

Dear Sophie,

I applied for an EB-2 NIW green card without an employer sponsor from outside the U.S. (South Korea). While waiting, I received a job offer, and my new employer got me an O-1 visa. My employer is willing to sponsor me for a green card.

Will I benefit from accelerated processing times for my EB-2 NIW if my employer takes over, or will I have to restart the green card process with my employer?

— Exceptional Engineer

Dear Exceptional,

Congrats on your new job! If you haven’t already, you should contact your attorney and ask about address changes as well as the possibility of switching from immigrant visa processing with the U.S. Department of State’s National Visa Center (NVC) to an adjustment of status process in the U.S. with USCIS.

To address the first part of your question: Green card petitions submitted by employers are not automatically expedited. The processing time for the EB-2 NIW I-140 green card petition and the I-485 application to register EB-2 NIW permanent residence is the same whether it’s filed by an employer sponsor or an individual.

In fact, you may have improved your chances of getting your EB-2 NIW approved by self-petitioning. The Cato Institute found that U.S. consulates consistently deny a majority (61%!) of employer-based green cards due to problems with the candidate’s job offer. These denials can come even after USCIS has approved the petition.

According to the USCIS Case Processing Times page — and depending on the service center handling the case — it’s taking 15 to 24 months to process EB-2 NIW I-140 applications. USCIS is phasing in premium processing for EB-2 NIW petitions, so if you filed yours on or before June 1, 2021, you may be able to shave off a few months of waiting time if you apply for premium processing now.

Keep in mind that premium processing for EB-2 NIW applications means USCIS will have 45 calendar days to either make a decision or request additional evidence instead of the traditional 15 days for premium processing for other case types. Also, premium processing is not available for the I-485 adjustment of status application. This is the final step in the green card process while applying from within the U.S.

USCIS can take two years or more to process I-485 applications depending on the office handling the case. If you haven’t already, you can file your I-485 while your I-140 is pending as long as you weren’t born in India or China.

You can ask your employer to sponsor you for an EB-1A extraordinary ability green card if you qualify. An EB-1A I-140 petition can be submitted to USCIS with 15-day premium processing, but remember that premium processing does not apply to the I-485 application.

Rather than asking your employer to sponsor you for a green card, consider asking your employer to support you in other ways! For instance, ask your employer to cover additional green card-related fees related to the I-485 Adjustment of Status process for you and any immediate family members, or to cover the services of your immigration attorney to help you through the remainder of the green card process, or accompany you to your green card interview if you are required to have one!

You’ve got this!

— Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. “Dear Sophie” is a federally registered trademark. You can contact Sophie directly at Alcorn Immigration Law.

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