Short answer: not directly. USCIS has no form that converts an EB-2 petition into an EB-1 petition. What people call an "upgrade" is a brand-new EB-1 I-140, filed on its own evidence and decided on its own. If your EB-2 I-140 was already approved, you can usually carry its priority date over to the new petition, so you don't lose your place in line. You can also have both petitions on file at the same time.
That is the whole mechanism. The rest of this post covers who it makes sense for, how the filing works, and what to watch for when you have two petitions open.
Why people move from EB-2 to EB-1
The reason is almost always the wait. For applicants born in countries with heavy demand, India and China above all, the EB-2 line can run for years. EB-1 is a separate line, and it usually moves faster. Filing in EB-1 is a way to get out of the EB-2 backlog if your record now meets the higher bar.
EB-1 also asks for less paperwork in one respect. An EB-1A petition needs no job offer and no PERM labor certification, so you can file it yourself. Most EB-2 cases need an employer and a labor certification, unless you qualify for a National Interest Waiver.
How the move works: a new I-140
- Pick the EB-1 subcategory you actually fit (see the next section).
- Build the evidence for that subcategory. The new petition must meet every EB-1 requirement independently. Nothing carries over from the EB-2 file except, potentially, the priority date.
- File a new Form I-140 in the EB-1 category. It is a separate petition, not an amendment to the EB-2 one, and it has its own USCIS filing fee. Premium processing is available for certain I-140 petitions if you want a faster decision.
- Ask for the earlier priority date, if you have one to keep (see "Keeping your EB-2 priority date" below).
Keeping your EB-2 priority date
Your priority date is your place in line. It is usually set when your employer filed the PERM labor certification, or when the I-140 was filed if no labor certification was needed.
If your EB-2 I-140 was approved, the priority date it established can generally be kept and used for a later EB-1 petition filed for you. That matters when the EB-2 date is earlier than the date the new EB-1 petition would get on its own. There are exceptions, so confirm with your attorney before you rely on the older date. For more on how carrying a date over works, see can an EB-2 priority date be ported to EB-1?
Which EB-1 category fits
- EB-1A, extraordinary ability. Sustained national or international acclaim in the sciences, arts, education, business, or athletics, shown through the EB-1A criteria. No job offer needed. You can self-petition.
- EB-1B, outstanding professors and researchers. International recognition in an academic field, at least three years of teaching or research experience, and a qualifying job offer from a U.S. employer. See EB-1A vs. EB-1B.
- EB-1C, multinational managers and executives. Generally, at least one of the three years before you came to the U.S. (or, if you're still abroad, before the petition is filed) working abroad in a managerial or executive role for a related company, and coming to the U.S. to keep working in that capacity for the same employer or its subsidiary or affiliate. Needs a U.S. job offer from an employer that has been doing business for at least one year.
The situations where a move tends to make sense track those three:
- Your record has grown since the EB-2 filing: awards, press, judging, published work, leadership roles. That points toward EB-1A.
- You moved from a research role into a professorship or a permanent research position. That points toward EB-1B.
- You moved into a managerial or executive role with a multinational employer, after qualifying time abroad. That points toward EB-1C.
EB-1A is a much higher bar than EB-2. Meeting three of the criteria (or showing a major, internationally recognized award, such as a Nobel Prize) gets you to a second step, where USCIS asks whether the record as a whole shows you are at the top of your field. Be honest with yourself about the evidence before you file.
Can you file EB-1 and EB-2 at the same time?
Yes. No rule limits how many I-140 petitions can be filed for one person, by one or more employers or by you where self-petitioning is allowed. You can have an EB-1 and an EB-2 petition pending at the same time, or file one after the other.
People do this for three reasons:
- A backup. If the EB-1 petition doesn't meet the bar, the EB-2 petition is still there.
- Different evidence for different standards. An EB-1A case rests on acclaim. The EB-2 case can rest on your degree and experience, or on a national interest waiver.
- Speed. If the EB-1 petition is approved, you can move forward in that line without waiting on the EB-2 one.
The costs are real. Each petition has its own USCIS filing fee, and preparing two cases means more legal work, more expert letters and more document gathering.
What happens if one petition is denied
USCIS decides each petition on its own record, so a denial of one is not an automatic denial of the other. The two are not sealed off from each other, though. A denial can raise questions about the evidence in the other filing, for example when the EB-1 denial finds problems with achievements the EB-2 case also relies on. Keep the facts, dates and job descriptions consistent across both petitions. If one is denied, talk to your attorney about what the decision means for the other before you respond to anything.
After you file
- RFE. USCIS may send a Request for Evidence asking for more. Answer every point by the deadline.
- Approval. An approved EB-1 I-140 does not, by itself, give you a green card or any immigration status. It makes you eligible to take the last step once your priority date is current in the EB-1 line: adjustment of status (Form I-485) if you are in the U.S., or consular processing abroad. If you are in the U.S. and your date is already current, you may be able to file the I-485 together with the I-140.
- Keep your current status. While the petitions are pending, keep your current visa status (H-1B, L-1, O-1 or similar) valid. A pending or approved I-140 does not replace it.
Check the monthly Visa Bulletin to see where your date stands. Our EB-1A timeline covers how long each stage tends to take.
EB-1 vs. EB-2 at a glance
EB-2 | EB-1 | |
|---|---|---|
Who it's for | Advanced-degree professionals (a master's, or a bachelor's followed by five years of progressive experience in the specialty) and people of exceptional ability | Extraordinary ability (1A), outstanding professors and researchers (1B), multinational managers and executives (1C) |
Job offer | Usually required, unless you get a national interest waiver | Not required for EB-1A; required for 1B and 1C |
PERM labor certification | Usually required, unless you get a national interest waiver (EB-1A vs. EB-2 PERM) | Not required for any EB-1 category |
Wait for high-demand countries | Often long | Usually shorter |
If you're weighing whether your record is ready for EB-1, or whether to keep an EB-2 case running alongside it, we're happy to talk it through.
About the Author
Loren Locke is the Managing Attorney of Locke Immigration Law and a former U.S. Foreign Service Officer who adjudicated approximately 12,000 visa applications at the U.S. Consulate in Mexico. She holds a J.D. from William & Mary Law School and a B.A. summa cum laude from the University of Richmond. Loren is regularly quoted on immigration policy by major publications including Newsweek, Condé Nast Traveler, and The Daily Mail, and specializes in EB-1A extraordinary ability petitions, O-1 visas, and National Interest Waivers.
Follow Loren on LinkedIn | Watch on YouTube | Book a consultation | hello@lockeimmigration.com
Want to learn how to strategically frame your achievements for the EB1A "Extraordinary Ability" visa? My free 5-day email course, "5 Days to Your Compelling EB1A Story," provides the 'EB1A Storytelling Toolkit' to help you build a powerful case. Sign up here.