So you have already been approved for an EB-3 but your Priority Date is retrogressed and it looks like it will be quite awhile before it becomes current. Is it possible to upgrade from EB-3 to EB-2 with the same employer?

You have two possible options for qualifying for an employment based second preference (EB-2) immigrant visa:

  1. Have the equivalent of a US master’s degree; or,
  2. Have a bachelor’s degree plus five years of progressive experience.

You also must have met these requirements before you accepted a position with your employer.

Let’s say you are working for an employer as a physical therapist and your employer has filed and received an approval notice for an EB-3 immigrant petition for you. Can you go to school, get a master’s degree, and then have your employer file an EB-2 petition for you so you don’t have to wait as long to get your green card?

No and yes. You cannot file an upgrade if you are going to stay in the same position. It would not make sense for your employer to tell USCIS that your position only required a bachelor’s degree when it filed your EB-3 petition, then suddenly claim it required a master’s degree in order to file an EB-2. However, if you are changing positions and moving to a position which involves more responsibilities and requires a higher education or more experience, then you can file the upgrade. Moving from Staff Physical Therapist to Senior Physical Therapist might work, depending on your employer’s experience and education requirements for the Senior position.

If your employer is not willing to do this, you can always¬†to a new employer and accept a position which requires a master’s degree and then have your new employer file an EB-2 case for you which will recapture your priority date from your EB-3 case.