Q: Dear experts, My EB2 PERM was submitted in November, 2023 and I'm on H1B, 2nd year.
Given the huge backlog on PERM and as my employer does not do premium processing for I140, I've started to explore my chances for NIW and I may have a good chance based on my profile. My NIW, ROW priority date would be April, 2024 earliest whereas my EB2 PERM, ROW priority date would be November, 2023. Obviously, I140 approval for NIW would come earlier due to the reasons mentioned above.
Questions:
1. Would a potential NIW denial affect my employment EB2?
2. Would my employment EB2 priority date be the PERM submission date or NIW I140 submission date?
3. Given the ROW backlog, I may not be able to file my NIW I485 right away so I may still need to wait until the end of 2025 to submit my I485 at which time the employment I140 may also be approved by setting my November priority date. Will I be able to port my priority date from employment EB2 to NIW at that time while filing I485 regardless of earlier NIW 140 approval date?
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A:
1. A potential denial of your National Interest Waiver (NIW) should not affect your Employment-Based Second Preference (EB2) application, as they are considered separate processes under U.S. immigration law. However, ensure that any information provided in the NIW application is consistent with what was submitted for the EB2 to avoid complications.
2. For your EB2 case, the priority date is typically the date when your PERM labor certification was filed, provided it gets approved. This date remains with your EB2 process, independent of your NIW I-140 submission date. The NIW does not require a PERM, so its priority date would be when the I-140 is filed under the NIW category.
3. If your EB2 I-140 gets approved, you can indeed port the priority date from your EB2 application to your NIW application when filing for adjustment of status (I-485), assuming the earlier date is beneficial to you. This is allowed as long as both I-140 petitions are approved. This strategy can potentially shorten your waiting time for a green card if the NIW route progresses faster but still relies on the availability of visa numbers.
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