I have an approved I-140 with my previous employer. And my new employer is starting my perm process again.
I am aware of the fact that i would be able to use my PD from the approved I-140 with the new application.
But, my current employer will be filing my perm under EB3 instead of EB2. So even if i use the EB2 PD, I will still be pushed back in the waiting queue as i will be then unde EB3 queue.
When i mentioned this to the laywer, he said when filing for my new I-140, I would not only be able to use the PD from it but also will be able to use the category in which it was filed with. So that means i would still be able to file under EB2 instead of EB3 category.
I wanted to check with the experts here, if this is a true statement.
It appears that you are looking for a second opinion. Please seek a private consultation with an experienced immigration attorney in NYC to accomplish it.
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Impossible to give a meaningful answer without knowing all the facts, I.e. examining the new PERM position; comparing to the old; and etc. Spend a fistful of dollars to sit down with a local immigration lawyer to examine in detail and tell you.
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PD retention is generally do-able unless the first I-140 was withdrawn. The "upgrade" that you refer to in the second part of your question is possible sometimes but very case-specific. An attorney would have to closely review the PERM job requirements, among other aspects, to determine whether this it is a possibility under your circumstances and advise your employer accordingly.
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I agree with my colleagues, from the description it is difficult to understand your current strategy. If you could port, it is hard to understand why you would do a new PERM.
The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.
That statement is incorrect. The original priority date may be retained. the visa category depends upon the requirements of the position.