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How to File a Subsequent I-140 to Convert Visa Classification

Written By The Shapiro Law Group on January 07, 2014

“The waiting is the hardest part,” says the popular Tom Petty song. Well, the same is often true after you have filed the I-140 petition for an employment-based visa. In fact, in some cases, foreign nationals from specific countries – such as China and India – may wait several years before their priority date comes up.

The wait is always difficult, of course, but what can make the wait even more frustrating is when the priority date of a lower preference category surpasses the priority date of a higher preference category. For instance, Chinese nationals currently see a cut-off date for the EB2 category of December 8, 2008, whereas the cut-off date for the EB3 category is April 1, 2012.
In some cases, a foreign national may be eligible for more than one employment-based visa classification. In these cases, the applicant can file an I-140 in concurrent classification if he or she chooses. Alternatively, if the applicant already filed an I-140, he or she may wish to “retrogress” the application or, in other words, file a subsequent I-140 to change their visa classification from EB2 to EB3. Retrogressing is permitted by the U.S. Citizenship and Immigration Services (USCIS) provided that the applicant qualifies for both preference categories.

How Do I File a Subsequent I-140 Petition?

There are several things to keep in mind if you are considering filing a subsequent I-140. For instance, you should:

  • Make sure that you qualify for the other preference category.
  • Not withdraw the initial I-140 petition.
  • Submit a cover letter with the subsequent I-140 petition in accordance with immigration regulations that indicates the classification that you are seeking.
  • Provide a copy of the approved labor certification and inform USCIS that the original labor certification is attached to the previously-filed I-140.
  • Include the PERM number on the I-140.
  • Include all evidence of your qualifications for the position sought, including degrees, education, training, and work experience.
  • Include a copy of the EB approval notice, which will include the priority date and file number.

If you would like to file a subsequent I-140 petition because the cut-off date for another preference classification to which you apply is more recent, you should contact a skilled immigration attorney. The Chicago employment-based immigration attorneys at the Shapiro Law Group have been helping foreign national employees obtain the appropriate work-related visas for more than 30 years. We can help you determine whether you qualify for another preference category with a more recent cut-off date and can assist you with the filing of a subsequent I-140.

If you are an employer or employee in need of immigration assistance, do not hesitate to contact us at (847)564-0712 to speak with an experienced and qualified Illinois employment immigration attorney.