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  • Employer says I do not qualify for EB2

    Greetings everyone,

    I have a question about my I-140 application which has been filed under EB3. The PERM has already been approved for my job which requires a Masters degree but just to make things complicated, the filing also says that an alternate qualification of "bachelor's degree or suitable combination of education/training/experience deemed equivalent to US bachelor's degree by a credentials evaluation service and 5 years experience in addition to the bachelor's degree/equivalent is acceptable" Does this language in my PERM filing disqualify me for EB2 or is there still hope? Please say that there is still hope! I am worried especially about the "training/experience"...does the "bachelor's equivalent + 5 years" for EB2 have to be only through education or can it come from training/experience as well?

    I would like to try filing a second I-140 under EB2 if possible, for obvious reasons, and bear the costs myself. From what I understand, it is possible to do. Additionally, even if the EB2 I-140 application gets denied, the originally filed EB3 I-140 will remain as is and nothing will change. There is no risk to myself or my employer except that I will lose the few thousands of dollars in filing fees I paid for the second I-140. Do I need my employer's & company lawyer's approval to do this? Can they somehow stop me from filing a second I-140?

    Thanks!
    Last edited by shockabsorber7; 9th March 2012, 09:16 PM.

  • #2
    Hey everyone,
    Trying to get a reply to this posting. Please let me know if any of you have experienced something similar or if you have any suggestions.
    Thanks

    Comment


    • #3
      I don't think you can file I-140, your employer does. Unless you are claiming extra-ordinary ability under EB1 or national interest waiver.

      Looks like PERM job description is written for EB2 and that either a {Masters degree} OR {a bachelors degree + at least five years of post bachelors' degree experience} is required. Experience once counted toward equivalency for bachelor's degree cannot be counted again.

      What exactly are your qualifications?
      Last edited by nkm-oct23; 20th March 2012, 12:42 PM.

      Comment


      • #4
        EB-2 is statutorily defined at INA 203(b)

        (2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -

        (A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States. .... [The remainder discusses the national interest waiver so is irrelevant because you are dealing with a labor cert.]

        Inclusion of a Bachelors Degree disqualifies the POSITION from EB-2 classification. Additionally, are we talking about a "profession" here? That term is defined in the Act.

        INA 101(a)
        (32) The term "profession" shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.

        Webster's defines profession, in pertinent part as:
        * : a calling requiring specialized knowledge and often long and intensive academic preparation
        * : a principal calling, vocation, or employment

        The Business Dictionary suggests that a profession includes:
        Occupation, practice, or vocation requiring mastery of a complex set of knowledge and skills through formal education and/or practical experience. Every organized profession (accounting, law, medicine, etc.) is governed by its respective professional body

        Read more: http://www.businessdictionary.com/de...#ixzz1pg1DECC0

        The Oxford English dictionary describes a professional as:
        a person engaged or qualified in a profession: professionals such as lawyers and surveyors

        Black’s Law Dictionary defines the term “profession” as:
        A vocation requiring special, usually advanced, education, knowledge, and skill. The labor and skill involved is predominantly mental or intellectual, rather than physical or manual…. implies professed attainments in special knowledge as distinguished from mere skill. (West Publishing Co., 1990, p. 1210)

        Comment


        • #5
          Originally posted by nkm-oct23 View Post
          I don't think you can file I-140, your employer does. Unless you are claiming extra-ordinary ability under EB1 or national interest waiver.

          Looks like PERM job description is written for EB2 and that either a {Masters degree} OR {a bachelors degree + at least five years of post bachelors' degree experience} is required. Experience once counted toward equivalency for bachelor's degree cannot be counted again.

          What exactly are your qualifications?
          I have a US Masters degree and 3 years of work experience that I gained prior to working for my present company. I've been employed with this company for the past 4 years.

          Comment


          • #6
            Originally posted by shockabsorber7 View Post
            I have a US Masters degree and 3 years of work experience that I gained prior to working for my present company. I've been employed with this company for the past 4 years.
            I then wonder why your employer filed I-140 under EB3 when the job requirement meets EB2 and you also meet EB2. Did your employer offer an explanation?

            Check USCIS website
            Last edited by nkm-oct23; 20th March 2012, 04:01 PM.

            Comment


            • #7
              Originally posted by shockabsorber7 View Post
              I have a US Masters degree and 3 years of work experience that I gained prior to working for my present company. I've been employed with this company for the past 4 years.
              What qualifications are required by EVERY OTHER APPLICANT for that same position throughout that entire company? You still have not identified WHAT the position is. Is it a profession?

              YOU do not define the position, the employer does and the employer sets the requirements universally.

              Take a long hard and OBJECTIVE look at your argument.

              Suppose you were employed as a janitor. The mere fact that YOU have a Masters Degree does not make the position of janitor qualified for EB-2.

              Comment


              • #8
                Originally posted by nkm-oct23 View Post
                I then wonder why your employer filed I-140 under EB3 when the job requirement meets EB2 and you also meet EB2. Did your employer offer an explanation?

                Check USCIS website
                The labor cert said a bachelors with experience will suffice. That knocks the POSITION out of the running for EB-2.

                Comment


                • #9
                  Originally posted by BigJoe5 View Post
                  The labor cert said a bachelors with experience will suffice. That knocks the POSITION out of the running for EB-2.
                  OP's first post stated that PERM was for Master degree, OR a bachelor's degree with 5+ year of progressive experience. This is the requirement for EB2. Check this USCIS website

                  Comment


                  • #10
                    nkm-oct23,

                    Their explanation was the same as what BigJoe5 says...since the job description allows for a bachelors/equivalent with 5 years work experience, that disqualifies me from filing an EB2 I-140.

                    I don't get it. From what I can see on the USCIS website and other documents I read, that should not disqualify the position from EB2 since my position requires a Masters OR in the absence of a Masters, a Bachelors and 5 years of work experience. I even spoke with another lawyer regarding this and was advised that this should be an EB2 application.

                    BigJoe5,

                    What are we missing here? I'm confused.

                    Below is an excerpt from a USCIS memo I came across.

                    ETA 750 Item 14: Education – Master’s or equivalent*

                    Major Field of Study**


                    Experience – 3 years in job offered or in the related occupation of software engineer, systems engineer, or programmer/analyst.


                    ETA 750 Item 15: * Bachelor’s degree in Computer Science, Electrical Engineering or academic equivalent, and 5 years of progressive experience will substitute for Master’s degree in Computer Science and 3 years of such experience.


                    ** Computer Science, Electrical Engineering or academic equivalent.


                    This position clearly requires a master’s degree or 5 years of progressive experience. Consequently, the position requires a member of the professions holding an advanced degree. Again, assuming the beneficiary possesses these qualifications, the underlying petition should be approved.




                    Anyway...the bottom line is, the company has already filed my I-140 under EB3. On speaking with another lawyer who does not work for my company, I was told that an EB2 I-140 application would likely be approved based on my Labor Cert. The lawyer then suggested that I could go ahead and file a second I-140 under EB2 based on the same Labor Cert as long as I get my company and it's lawyers to agree to it. This second application may or may not get denied, but if it doesn't I could shave off 4 - 6 years off my wait time. I just don't know if it is possible or how to go about doing it.
                    Last edited by shockabsorber7; 21st March 2012, 11:32 AM.

                    Comment


                    • #11
                      It is up to your employer to decide in which category to file your I-140.

                      Is it a regular employer or a "body shop"? Did you try asking your supervisor and/or HR why they did not file under EB-2?

                      Comment


                      • #12
                        Originally posted by nkm-oct23 View Post
                        It is up to your employer to decide in which category to file your I-140.

                        Is it a regular employer or a "body shop"? Did you try asking your supervisor and/or HR why they did not file under EB-2?
                        I know...it is unfortunately up to them and they have decided to go with EB3 when it seems that it could have been filed under EB2 and saved me 5 years!
                        I work for a regular company...it's not a body shop. My company lawyer/HR says that there was a possibility that the I-140 would get denied if filed under EB2 and they didn't want to take that risk. Filing a second I-140 would solve that problem.

                        Comment


                        • #13
                          This just might be a tactic by them to ensure that you stay with them for the next 5 years!!!

                          Originally posted by shockabsorber7 View Post
                          I know...it is unfortunately up to them and they have decided to go with EB3 when it seems that it could have been filed under EB2 and saved me 5 years!
                          Regards,
                          S K Ghori
                          skg@vex.net
                          http://www.vex.net/~skg/

                          **NOTE**
                          I underwent the immigration process in both Canada and the US. I hold Pakistani, Canadian and US citizenship.

                          **DISCLAIMER**
                          I am neither a lawyer nor an immigration consultant. My comments should NEVER be considered as legal or professional advice as they are not meant to be such.

                          Comment


                          • #14
                            Originally posted by Triple Citizen View Post
                            This just might be a tactic by them to ensure that you stay with them for the next 5 years!!!
                            I don't want to think that my company would do that to me, but it seems that you are right. I would have been more than happy to sign some kind of contract saying I would remain with the company for x amount of years after receiving the GC, but I don't like this feeling that I'm being played by my employer.

                            Comment


                            • #15
                              Originally posted by shockabsorber7 View Post
                              I don't want to think that my company would do that to me, but it seems that you are right. I would have been more than happy to sign some kind of contract saying I would remain with the company for x amount of years after receiving the GC, but I don't like this feeling that I'm being played by my employer.
                              In principle you should be eligible for EB-2 (since you have masters degree and 4 years experience) and I believe you cannot use the same labor approval (the job description might have been tailored for EB-3). If your company is willing to help (paper work and not financially) then you can hire your own lawyer and get things moving.

                              Good luck.
                              GC-EB1EA-May 2007
                              03/02/12: N-400 FedExed to Phoenix, AZ Day 0)
                              03/05/12: N-400 delivered (Day 3)
                              03/12/12: NOA received (Day 10)
                              03/26/12: FP notice recd (Day 24)
                              03/30/12: FP done (walk in) (scheduled on 04/09/12) (Day 28)
                              04/19/12: Interview scheduled (Notice is sent) (Day 48)
                              04/27/12: IL Recd. (Day 56)
                              05/29/12: Interview Done- 'Passed'(Day 87)
                              05/31/12: oath scheduling que (Day 89)
                              06/27/12: US Citizen
                              06/29/12: Applied for Passport
                              07/12/12: Received Passport

                              Comment


                              • #16
                                Originally posted by shockabsorber7 View Post
                                nkm-oct23,

                                Their explanation was the same as what BigJoe5 says...since the job description allows for a bachelors/equivalent with 5 years work experience, that disqualifies me from filing an EB2 I-140.

                                I don't get it. From what I can see on the USCIS website and other documents I read, that should not disqualify the position from EB2 since my position requires a Masters OR in the absence of a Masters, a Bachelors and 5 years of work experience. I even spoke with another lawyer regarding this and was advised that this should be an EB2 application.

                                BigJoe5,

                                What are we missing here? I'm confused.

                                Below is an excerpt from a USCIS memo I came across.

                                ETA 750 Item 14: Education – Master’s or equivalent*

                                Major Field of Study**


                                Experience – 3 years in job offered or in the related occupation of software engineer, systems engineer, or programmer/analyst.


                                ETA 750 Item 15: * Bachelor’s degree in Computer Science, Electrical Engineering or academic equivalent, and 5 years of progressive experience will substitute for Master’s degree in Computer Science and 3 years of such experience.


                                ** Computer Science, Electrical Engineering or academic equivalent.


                                This position clearly requires a master’s degree or 5 years of progressive experience. Consequently, the position requires a member of the professions holding an advanced degree. Again, assuming the beneficiary possesses these qualifications, the underlying petition should be approved.




                                Anyway...the bottom line is, the company has already filed my I-140 under EB3. On speaking with another lawyer who does not work for my company, I was told that an EB2 I-140 application would likely be approved based on my Labor Cert. The lawyer then suggested that I could go ahead and file a second I-140 under EB2 based on the same Labor Cert as long as I get my company and it's lawyers to agree to it. This second application may or may not get denied, but if it doesn't I could shave off 4 - 6 years off my wait time. I just don't know if it is possible or how to go about doing it.
                                Does the employer demand the absolute SAME minimum qualifications for the POSITION throughout its ENTIRE workforce? They CANNOT tailor ONE job opening based on anyone's specific qualifications. IF they previous filed the same job at EB-3, then they are stuck with that decision.

                                Comment


                                • #17
                                  If the primary education requirements for labor certification is masters degree which is what you possess, I think you should definitely refile your case in EB-2. Primary and secondary education requirements are mentioned just because by virtue of being employed by petitioning employer, benenficiary is trying to fulfill education requirements thru secondary requirements and kellogg language should have been mentioned in PERM or ETA 750.

                                  Comment


                                  • #18
                                    Have a look at this http://www.uscis.gov/portal/site/usc...00b92ca60aRCRD

                                    Comment


                                    • #19
                                      Do I qualify for EB2?

                                      Dear Sir,

                                      I am working in USA since 2010 Jan on H1B. I am working as Business Analyst in IT.
                                      I have completed Bachelors Degree in Commerce(3yrs) through Distance Learning and Post Grad Diploma in Business Management in Marketing - Distance Learning (2yrs), Certified in SAP,Oracle,C++,UNIX etc.
                                      Overall Experience - Over 20 Yrs
                                      USA Exp = 2.5 yrs(Business Analyst in IT) ,
                                      Exp from INDIAN Companies = 5yrs as Business Analyst in IT
                                      Other IT Exp = 6yrs
                                      Domain Exp = 7yrs

                                      Do they consider my US Experience in the stipulated 5 yrs progressive experience?

                                      DO I qualify for EB2?

                                      Thanks in advance for your kind response...

                                      Comment

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