Porting Eb3 to Eb2

[kramac01]

Hi,
Case 1:
Company A (currently working) left for 1 year and came back while labor was in process.
PD : Sept 2003 (Eb3)
I 485 filed - july 2007
Got EAD and AP

Case 2:
Company B worked for 1 year through them and filed labor in 2004
PD : Oct 2004 (eb2) Labor went to BEC, Didnt check after that.
Didnt have contact after that.
Now the question is :
What do I do now to take the eb2 PD in effect?
Any suggestions would be appreciated.

[anai]

Originally Posted by kramac01

Hi,
Case 1:
Company A (currently working) left for 1 year and came back while labor was in process.
PD : Sept 2003 (Eb3)
I 485 filed - july 2007
Got EAD and AP

Case 2:
Company B worked for 1 year through them and filed labor in 2004
PD : Oct 2004 (eb2) Labor went to BEC, Didnt check after that.
Didnt have contact after that.
Now the question is :
What do I do now to take the eb2 PD in effect?
Any suggestions would be appreciated.

For your EB-2 labor: did 'Company B' receive a "45-day" letter in 2006 or so? Such a letter (requiring a response withing 45 days) was sent for cases at the BEC to make sure that those cases were indeed still active.
(1) I think if that letter was ignored, then that labor petition may not be alive (this is my best opinion; please do check with others).
(2) Even if your labor was approved from the BEC, you have to meet another criterion requiring an I-140 to be filed within 180 days of labor approval. (Once again, there may or may not be some exception to this that applies to you.)
Given (1) and (2) above, it seems unlikely that you can file an I-140 based on the EB-2 now.

But given the heavy EB-3 retrogression, you are on the right track exploring this option. Get a proper legal opinion on this and make every effort to use EB-2. Good luck.

[martinvisalaw]

Originally Posted by kramac01

Hi,
Case 1:
Company A (currently working) left for 1 year and came back while labor was in process.
PD : Sept 2003 (Eb3)
I 485 filed - july 2007
Got EAD and AP

Case 2:
Company B worked for 1 year through them and filed labor in 2004
PD : Oct 2004 (eb2) Labor went to BEC, Didnt check after that.
Didnt have contact after that.
Now the question is :
What do I do now to take the eb2 PD in effect?
Any suggestions would be appreciated.

You can't, it seems. You could recapture the EB-3 PD and use it for the EB2 I-140 if you were filing a second I-140. Since you don't appear to be working for Co. B and therefore are not continuing the process through them, you don't have a new petition to port TO.