Bachelor+5 years for I-140, safe?

N

nxm

Registered Users (C)
Hello All,

Little background about my case, I will be filing PERM for a Senior Programmer/Systems Analyst requiring Bachelor with 5 years of progressive experience with bunch of technical stuff and other requirements. We cannot mention MS requirement as it is not required for this job and my company will not support it. Masters is not the requirement defined by HR for this job, so there is no way I can mention MS in the job requirements. I have only one choice to file under EB2 and that is to go with Bachelor+5 years.

There have been some cases where DOL denied PERM for Bachelor+5 years, saying that it was excessive. But then there have been many cases where it just got approved.

Now here is my real concern, say DOL approves my EB2 PERM and the time comes to file I-140. I have heard that folks at INS(USCIS) do not see BS+5 as EB2 requirement and they deny the case and send RFE all the time telling people to file under EB3. Is this true? What are the chances that USCIS will approve BS+5 for I-140 EB2? And if they deny it, do I need to start over from PERM or can we just re-file I-140 in EB3?

When I-140 is approved under EB2 with BS+5, are you safe at this point or can your whole case de denied at I-485 stage? I guess I would like to know all the risks involed with filing Bachelor+5 years of experience and going with EB2.

I would appreciate any help and feedback I can get on this.

Thanks a lot everybody.
 
Please ask this question in PERM or I-140 section. This section pertains to Retrogression related issues only.
 
I have not heard of USCIS not liking BS + 5 for EB2, as long as the experience is specialized I think you are safe. In your case, advertized skills & experience in LC need to be close. At the I140 stage, just have your experience letters highlighting your specialized skills matching LC from the previous companies(it is better that these past companies are not desi bodyshoppers or some unknown mystery companies in India that our brother/dad worked). Many people that I know had their LC done in PERM EB2 with BS +5; no problems. If the experience is gained in the US, one of the things you can use is your past salary history to your advantage. Once I-140 is cleared, usually your experience and qualification are not revisited at I-485 stage in most cases.
 
Thats good

Thanks for the reply, I appreciate that.

I agained most of my experience with the same company under a Programmer Analyst designation. Now I am working as a Sr. Programmer and my job duties have changed more than 50%. The experience in the advertised job will be very close to my experience. I would like to use my experience gained at my present company.

What do you all think, Is it safe to use the experience gained at the same company when the current job duties are more than 50% different? Or one should change the company to use the experience in his advantage?

Thanks.
 
nxm said:
Thanks for the reply, I appreciate that.

I agained most of my experience with the same company under a Programmer Analyst designation. Now I am working as a Sr. Programmer and my job duties have changed more than 50%. The experience in the advertised job will be very close to my experience. I would like to use my experience gained at my present company.

What do you all think, Is it safe to use the experience gained at the same company when the current job duties are more than 50% different? Or one should change the company to use the experience in his advantage?

Thanks.
Click to expand...
if i remember correctly....u cannot use experience gained from the same company through which you are applying for labor..
 
Correct

That is absolutely correct but you can use your experience with the same employer if you are not in the same position and your job dutues are substantially different, i.e. more than 50% different, from your previous job.

In my new/current job my job duties have changed more than 50%. So I think I can use the experience.

I appreciate the feedback, please provide more comments and advise as this might be beneficial for lots of other people in the similar position.

Thanks.
 
indian_gc_ocean said:
I have not heard of USCIS not liking BS + 5 for EB2, as long as the experience is specialized I think you are safe. In your case, advertized skills & experience in LC need to be close. At the I140 stage, just have your experience letters highlighting your specialized skills matching LC from the previous companies(it is better that these past companies are not desi bodyshoppers or some unknown mystery companies in India that our brother/dad worked). Many people that I know had their LC done in PERM EB2 with BS +5; no problems. If the experience is gained in the US, one of the things you can use is your past salary history to your advantage. Once I-140 is cleared, usually your experience and qualification are not revisited at I-485 stage in most cases.
Click to expand...

I want to ask a related question.

Facts:
  • My labor application (TR) did not mention MS as a requirement but did mentioned BS+5 years of experience as requirement.


  • I do have customized letters of experience (for 5 years) from previous employers (in format/contents provided by the paralegal for this LC).


  • The advertised salary (as well as what I receive) will be well within EB2 range.

Questions:


  • Will it be possible to file EB2 I-140? How much risk is there of I-140 rejection?


  • If EB2 I-140 is rejected, is it possible to file EB3 I-140?

I've asked this question on this forum in past without any success. I'll appreciate any reply.
 
gravitation said:
I want to ask a related question.

Facts:
  • My labor application (TR) did not mention MS as a requirement but did mentioned BS+5 years of experience as requirement.


  • I do have customized letters of experience (for 5 years) from previous employers (in format/contents provided by the paralegal for this LC).


  • The advertised salary (as well as what I receive) will be well within EB2 range.

Questions:


  • Will it be possible to file EB2 I-140? How much risk is there of I-140 rejection?
    Yes. The risk depends on your job profile. Sometimes CIS would like experience to be "progressive" and looks for this word in LC as well.


  • If EB2 I-140 is rejected, is it possible to file EB3 I-140?
    Yes. Sometimes as part of RFE, option is given to "downgrade" application from eb2 to eb3.

I've asked this question on this forum in past without any success. I'll appreciate any reply.
Click to expand...

Good Luck.
 
BS+5yrs exp is more safe in LC stage compare to MS requirement. In 140 stage, it is subject to the USCIS decision. In most cases, they will approve. There is no need for exclusive "progressive" word in your LC or exp letter. However, your experience and requirement in LC must show that you have it.
 
Thank you

perm_lc, I appreciate your response and info. -Gravity
perm_lc said:
BS+5yrs exp is more safe in LC stage compare to MS requirement. In 140 stage, it is subject to the USCIS decision. In most cases, they will approve. There is no need for exclusive "progressive" word in your LC or exp letter. However, your experience and requirement in LC must show that you have it.
Click to expand...
 
nxm said:
That is absolutely correct but you can use your experience with the same employer if you are not in the same position and your job dutues are substantially different, i.e. more than 50% different, from your previous job.

In my new/current job my job duties have changed more than 50%. So I think I can use the experience.

I appreciate the feedback, please provide more comments and advise as this might be beneficial for lots of other people in the similar position.

Thanks.
Click to expand...

As far as I know, I haven't seen many starting greencard after working for five years in the same company. You are lucky that your company is willing to do at this time, now a days people are offered a job in India in this situation. But I know instances where current company's one or two years experience is not counted towards filing greencard. If you are currently a manager, INS expects you to have held such position in the past atleast for sometime. I believe that current company experience cannot be used. May be there is a chance if you on L1A and you have worked in India for the same company for sometime. Please check with lawyers like Rajiv, Murthy... through telephonic consultation(20-25 minutes will cost you around $150-$250, depending on your lawyer selection) or you can search the boards, murthy's chat's if you haven't done already.

Check this one in this same forum, may be you can contact this lawyer too.
http://www.immigrationportal.com/showpost.php?p=1656409&postcount=16
 
Last edited by a moderator:
Very helpful, but confused.

I had two years of experience before I joined my current employer. I am in fourth year of my H1. So I have more than 5 years of progressive experience after my undergraduate.

I guess I am a little confused. Is it safe to use experience with the same company?

On one hand we have a memo from USCIS talking about equivalency of EB2 where it clearly states that BS+5 years can be used for EB2 filing. On the other hand we have this;

Even if your job experience is 50% different then what you are being sponsored for; by default PERM will get denied since DOL analyst doesn't go that far into looking at your job duties and comparing with what you are being sponsored for. On appeal you would then argue that the experience you have gained with the employer is 50% different.
Click to expand...

And there are many cases where PERM for BS+5 yrs has been approved. Which is approved by DOL. And also cases for BS+5 have been approved by USCIS for I-140.

What I am looking for is some sort of advise or risks involved with BS+5 throughout the whole process of PERM, I140 and I485. Is it better to change the company to be one the safe side? What if DOL approves PERM and USCIS denies the 140 for EB2 BS+5, can we file for I140 under EB3? Or do we start over from PERM under EB3?

Please advise as time is running out and I haven't even gotten the PD yet.

Thanks.
 
nxm said:
I had two years of experience before I joined my current employer. I am in fourth year of my H1. So I have more than 5 years of progressive experience after my undergraduate.

I guess I am a little confused. Is it safe to use experience with the same company?
Click to expand...
No it is not safe, but it can work. Their default behavior is to ignore experience with the same employer. Then the burden is on you to make them recognize that experience, by showing that the position for the GC is sufficiently different from the position(s) you already had with the employer. Naturally, that burden goes away if you apply with a different employer.
 
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