New PERM EB2 with pending EB3 at consular processing stage

R

rrajendr

Registered Users (C)
Current status of mine:
My Employment based green card with my current employer is pending in
EB3 category at the Consular processing stage at the consulate with the Labor, I-140 approved. My priority date is July 2003. I am on my 6th year of H1B and the extension of H1B has been approved for another 3 years till 2009. My current pending EB3 petition is applied for as Programmer analyst and so is my approved current H1B petition.Also I have had 2.5 years of previous employment experience as Programmer Analyst(1.5 years in US and 1 yr in India) and a Master's degree in Computer science(in US) before I joined my current employer for whom I have worked for 5 years as Programmer Analyst on H1B.

My lawyer’s advice to Me:
His advice was to file for a new EB2 petition (since I had a Master’s degree before I joined the current employer) with the SAME EMPLOYER on the job code 11-3021.00 as Computer and Information system manager position. At the I-485 stage I could transfer my EB3 PRIORITY DATE OF JULY 2003(FROM THE SAME EMPLOYER) onto this new EB2 application thereby expediting the processing of the green card.

I have some questions based on this could you please answer:
1)As per my lawyer’s advice he wanted to file the new EB2 petition with the job code 11-3021.00 as Computer and Information system manager position. I didn’t have this experience before I joined my current company though I gained it with my current company.
***1a. Will it be OK to file for “Computer and Information system manager” position (senior position) WITHOUT me having that experience before I joined the current company though I gained in my present employment.
***1b. If a) is ok, based on my knowledge in RIR Labor Certification they DIDN’T allow to use the present employer’s experience while filing for the Labor certification for the same employer. Then how is this POSSIBLE in PERM Labor certification? Could you please ELABORATE in detail how this is possible and point me to any legislative articles if any.
***1c.In I-140 WOULDN’T CURRENT EXPERIENCE POSE ISSUES when we say that only in current employment some of the experience related to managerial skills were procured while the previous employment experiences were only as Programmer analyst.
***1d. Is it OK TO HAVE A PROMOTED SENIOR POSITION in the new
EB2 petition as Computer Information system manager though my
CURRENT PENDING EB3 PETITION IS APPLIED FOR AS
PROGRAMMER ANALYST AND SO IS MY APPROVED CURRENT
H1B PETITION? If it is OK, please let me know WHY SO and
if it is NOT OK please let me know WHY SO.
2) In case of ANY DENIALS along the NEW EB2 PETITION with the SAME EMPLOYER/EMPLOYEE will it AFFECT current pending EB3 application (at the consular processing stage) with the same employer/employee?
***2a) what will HAPPEN to the denied EB2 petition? Will it impact my PRESENT/FUTURE IMMIGRANT/NON-IMMIGRANT status/petition of mine?
3) Do you see any RISKS that this will be introduced into my EXISTING IMMIGRATION/NON-IMMIGRATION STATUS because of filling the above new EB2 petition? What are the chances of its SUCCESS? Would you RECOMMEND doing it?

My employer supports me in the process to the fullest extent.
 
I am also in the same situation. But my attorney says that the PD of EB3 needs to be current when we transfer the new EB2 I-140 to the existing I-485. He was referring to Pearson Memo, May, 9, 2000.

Could you let me know who is your attorney?
 
Folks same here. EB3 485 pending since April,04. My attorney also said porting the PD to EB2 is a gray area....
Pls post any useful information for EB3>>2 specially for already pending 485
 
How about 485 approved in EB3 and wife stuck in retrogression back home. I applied for follow to join and that got approved in feb 2005 along with my 485. Retrogression started in July and because of the processing delays I am suffering since about 3 years. I am ROW with a PD of July 2002.
I did masters here at the end of 2005 and looking for some ways to get this done in EB2 which is current but I dont think there is any way out except I surrender my GC and reapply everything in EB2 which will take another 2 years from now.
Dont know what to do.
 
Kamrans
If ur wife has a pending 485 she can stay in US(AOS is a valid 'status')...Didn't quite get why she is stuck back home?
 
She doesnt have anything pending. If the spouses are here in US they get the green card along with the applicant. If they are not here then you have to file follow to join I-824 which approves after your GC approval and then the case is transferred to US embassy in your home country.
She is not here and never visited me but when we get married I was using my EAD and using my Advanced parole so she get rejected for the H4. After the approval they are asking us to wait and we waited and then retrogression kicks in.
I really dont know what to do in this situation. Does anyone know if I can update my status to EB2? GC.


CoolTiger said:
Kamrans
If ur wife has a pending 485 she can stay in US(AOS is a valid 'status')...Didn't quite get why she is stuck back home?
Click to expand...
 
Gotcha.....Unfortunately you can't affect anything now that ur 485 is approved.....I would suggest talk to a good attorney ...the best option would be for her to get her own H1 or another visa independent of you.....
 
Hi Addagarla, cooltiger
Thanks for the responses. Can you please ANSWER MY QUESTIONS that I asked.
Also, in my case the I did'nt file the I-485 rather did consular processing. So will Pearson's memo still hold true in my case as well or can I transfer the PD to the new EB2 I-140 irrespective of the priority date status and then use the new EB2 I-140 with the old EB3 PD to file the new I-1485.


rrajendr said:
Current status of mine:
My Employment based green card with my current employer is pending in
EB3 category at the Consular processing stage at the consulate with the Labor, I-140 approved. My priority date is July 2003. I am on my 6th year of H1B and the extension of H1B has been approved for another 3 years till 2009. My current pending EB3 petition is applied for as Programmer analyst and so is my approved current H1B petition.Also I have had 2.5 years of previous employment experience as Programmer Analyst(1.5 years in US and 1 yr in India) and a Master's degree in Computer science(in US) before I joined my current employer for whom I have worked for 5 years as Programmer Analyst on H1B.

My lawyer’s advice to Me:
His advice was to file for a new EB2 petition (since I had a Master’s degree before I joined the current employer) with the SAME EMPLOYER on the job code 11-3021.00 as Computer and Information system manager position. At the I-485 stage I could transfer my EB3 PRIORITY DATE OF JULY 2003(FROM THE SAME EMPLOYER) onto this new EB2 application thereby expediting the processing of the green card.

I have some questions based on this could you please answer:
1)As per my lawyer’s advice he wanted to file the new EB2 petition with the job code 11-3021.00 as Computer and Information system manager position. I didn’t have this experience before I joined my current company though I gained it with my current company.
***1a. Will it be OK to file for “Computer and Information system manager” position (senior position) WITHOUT me having that experience before I joined the current company though I gained in my present employment.
***1b. If a) is ok, based on my knowledge in RIR Labor Certification they DIDN’T allow to use the present employer’s experience while filing for the Labor certification for the same employer. Then how is this POSSIBLE in PERM Labor certification? Could you please ELABORATE in detail how this is possible and point me to any legislative articles if any.
***1c.In I-140 WOULDN’T CURRENT EXPERIENCE POSE ISSUES when we say that only in current employment some of the experience related to managerial skills were procured while the previous employment experiences were only as Programmer analyst.
***1d. Is it OK TO HAVE A PROMOTED SENIOR POSITION in the new
EB2 petition as Computer Information system manager though my
CURRENT PENDING EB3 PETITION IS APPLIED FOR AS
PROGRAMMER ANALYST AND SO IS MY APPROVED CURRENT
H1B PETITION? If it is OK, please let me know WHY SO and
if it is NOT OK please let me know WHY SO.
2) In case of ANY DENIALS along the NEW EB2 PETITION with the SAME EMPLOYER/EMPLOYEE will it AFFECT current pending EB3 application (at the consular processing stage) with the same employer/employee?
***2a) what will HAPPEN to the denied EB2 petition? Will it impact my PRESENT/FUTURE IMMIGRANT/NON-IMMIGRANT status/petition of mine?
3) Do you see any RISKS that this will be introduced into my EXISTING IMMIGRATION/NON-IMMIGRATION STATUS because of filling the above new EB2 petition? What are the chances of its SUCCESS? Would you RECOMMEND doing it?

My employer supports me in the process to the fullest extent.
Click to expand...
 
rrajendr,

I think it is better to transfer EB3 PD to the new EB2 I-140 while applying for EB2 I-140. Then once we have new I-140 with old PD) then we should try attaching the new I-140 to the exisitng I-485. This is where my attorney is not sure whether USCIS will agree to attach new I-140 to the pending I-485.

My company is ready to support me but the attorney is not sure of the outcome.
 
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Hi Addargala
Thanks for the reply. Is it possible to reply me on the questions below that i requested for ie in a nutshell 1)
where they use a senior position to apply for new EB2 position which I don't hold now and also have gained some experience along those lines only in the current job(though my H1B, pending EB3 petition don't reflect it). Is it ok, to apply using the senior position?
2)If by chance if new EB2 is denied will it affect the pending EB3 petition in the Consular processing stage(an alternate stage to AOS) at all?
3)Do you see any RISKS that this will be introduced into my EXISTING IMMIGRATION/NON-IMMIGRATION STATUS because of filling the above new EB2 petition? What are the chances of its SUCCESS? Would you RECOMMEND doing it?
4)In my case, since I applied for Consular processing I didn't apply for AOS for EB3. So, will Pearson memo apply to me and if so how does it?
 
rrajendr said:
Hi Addargala
Thanks for the reply. Is it possible to reply me on the questions below that i requested for ie in a nutshell
1)where they use a senior position to apply for new EB2 position which I don't hold now and also have gained some experience along those lines only in the current job(though my H1B, pending EB3 petition don't reflect it). Is it ok, to apply using the senior position?

>>GC is for a future job. I dont see any problem using future senior position. But make sure that the experience gained after your EB3 PD is not used for filing EB2 labor. You might have an issue if you use it.
2)If by chance if new EB2 is denied will it affect the pending EB3 petition in the Consular processing stage(an alternate stage to AOS) at all?

>>I think you are referring to Eb2 I-140. According to my attorney, it doesn't effect pending I-1485 (EB3) petition.

3)Do you see any RISKS that this will be introduced into my EXISTING IMMIGRATION/NON-IMMIGRATION STATUS because of filling the above new EB2 petition? What are the chances of its SUCCESS? Would you RECOMMEND doing it?

>>I dont see any problem to your existing status. The chances... the result is uncertain as it is a gray area. It also depends on the attorney. I myself not able to decide whether I should move forward and do it.

4)In my case, since I applied for Consular processing I didn't apply for AOS for EB3. So, will Pearson memo apply to me and if so how does it?
Click to expand...

>>sorry for not answering this question earlier. My thinking is that AOS and consular processing are the same in terms of adjudication, procedures(USCIS stuff). My interpretation is that Pearson's Memo applies to consular processing as well.

Thanks
 
Hi Addagarla
Thanks for the responses. Based on your answers I have some questions to clarify on ur response. could you please clarify on it.

addagarla said:
>>1)where they use a senior position to apply for new EB2 position which I don't hold now and also have gained some experience along those lines only in the current job(though my current H1B, pending EB3 petition with current employer don't reflect it). Is it ok, to apply using the senior position?

>>GC is for a future job. I dont see any problem using future senior position. But make sure that the experience gained after your EB3 PD is not used for filing EB2 labor. You might have an issue if you use it.

---As I said before the current EB3 petition is pending with my current employer and the new Eb2 petition that I am planning to do is also with my current employer. Do you mean to say that I SHOULDN'T use any experience gained with MY CURRENT EMPLOYER (for whom I started to work by Sept 2001 though my Eb3 PD is july 2003)? If the above holds true, will it be ok to show the managerial experience only in current employment (some of the experience related to managerial skills that were procured in the Programmer analyst position in my current H1B) while the previous employment experiences were ONLY as PROGRAMMER ANALYST.
2)If by chance if new EB2 is denied will it affect the pending EB3 petition in the Consular processing stage(an alternate stage to AOS) at all?

>>I think you are referring to Eb2 I-140. According to my attorney, it doesn't effect pending I-1485 (EB3) petition.

---What I meant to say was if new EB2 petition gets denied in its LC or I-140 stage will it affect my pending EB3 petition in the Consular processing stage(an alternate stage to AOS) at all.


Thanks
Click to expand...
 
---What I meant to say was if new EB2 petition gets denied in its LC or I-140 stage will it affect my pending EB3 petition in the Consular processing stage(an alternate stage to AOS) at all.


>> The denial of new EB2 labor or I-140 doesn't affect your pending consular application (my attorney is clear about this).


The answer to your first question:

You can use the experience gained between Sept 2001 though your Eb3 PD ( july 2003) for new EB2 filing.
 
Last edited by a moderator:
Hi Addagarla
Thanks for your response. Sorry a quick confirmation:
You said

---What I meant to say was if new EB2 petition gets denied in its LC or I-140 stage will it affect my pending EB3 petition in the Consular processing stage(an alternate stage to AOS) at all.


>> The denial of new EB2 labor or I-140 doesn't effect your pending consular application (my attorney is clear about this).

***do you mean to say "The denial of new EB2 labor or I-140 doesn't AFFECT your pending consular application (my attorney is clear about this)" Was "effect" a TYPO there and instead should be "affect"?
 
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