My EB-3 green card is still pending. However, I would like to accept an offer of a great job opportunity. What are my options? After I accept this opportunity, can I then apply for an EB-5 visa, which was my original plan?
Answers
David Raft
EB-5 Immigration attorneysThe answer to your question would normally require further detailed information about whether or not you are currently in the United States, and if so, if you have an adjustment of status application filed and pending with the USCIS, or if not, what underlying nonimmigrant visa status you hold, if any.
Generally, an EB-3 petition is to qualify an individual for future permanent residence status based on an offer of employment. Any US employer can potentially file a new case to qualify you for further approval of a second or third EB3 petition, provided that the employer has the intent to offer you employment in the position for which the EB-3 petition was filed and upon your being granted permanent residence in the United States. Of course, you also have to intend to work for that employer upon being granted permanent residence.
Successive EB-3 petitions can be filed, and the USCIS will routinely grant the I-140 petition, with the ability for you to retain your original priority date. However, changing employers does require that you maintain your nonimmigrant visa status by having the employer sponsor you for a valid nonimmigrant work visa, or otherwise have a valid EAD card to actually work for any prospective employer that is sponsoring your EB-3 petition.
An EB-5 filing may allow you to obtain permanent residence much sooner than it may take to qualify for permanent residence under the EB-3 category, especially if you were born in a country that has a severe quota backlog. Such a filing can be submitted independently from the EB-3 case.
David S. Santee
EB-5 Immigration attorneysIf your I-140 has been approved and your I-485 has been pending for 180 days or more, you may be eligible for “portability,” which would allow you to keep your original priority date and adjust through your new employer. You should consult with an attorney experienced with EB-3 applications to make sure you meet all of the portability requirements. There is generally no prohibition on filing an EB-5 petition if you have a pending EB-3 adjustment application.
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