Can I change from EB3 to EB2?

S

seema_579

Registered Users (C)
Hi,

I came to USA though one consulting firm "XYZ" in Nov-2003 as a "Programmer Analyst". At tht point, I had 3 years 10 months experience S/W Experience. I filed my Green Card ONLY through "XYZ" in Jan-2006 through PERM in EB3. My Labor is approved now.
I have a Bachelor's of Science degree(Physics + Computer Science), a 15 year degree in India + GNIIT Degree, completed 3 years of course.

My question is:
1)
When I filed my Green Card in EB3 through PERM in Jan-2006, was there any possibility that I could have filed through EB2 category? Was I eligible for EB2 in Jan-2006 through same company "XYZ". Because in Jan-2006 I had over 6 years of S/W Experience.

My Employer suggested that I could have filed in EB2 & the lawyer could have proceeded accordingly.

2) If there is a way I can still file in EB2, how can I do it?
What documents can I show to the lawyer to have him re-apply in EB2?
Incase, the EB2 gets rejected, then can I re-apply in EB3 again?

What can be the impact to my Green card procedure?

GURUS: Your quick answer would be appreciated as I have to pay the fees to the lawyer for I-140 stage. Please suggest.

Thanks,
S
 
seema_579 said:
Hi,

I came to USA though one consulting firm "XYZ" in Nov-2003 as a "Programmer Analyst". At tht point, I had 3 years 10 months experience S/W Experience. I filed my Green Card ONLY through "XYZ" in Jan-2006 through PERM in EB3. My Labor is approved now.
I have a Bachelor's of Science degree(Physics + Computer Science), a 15 year degree in India + GNIIT Degree, completed 3 years of course.

My question is:
1)
When I filed my Green Card in EB3 through PERM in Jan-2006, was there any possibility that I could have filed through EB2 category?
NO.

Was I eligible for EB2 in Jan-2006 through same company "XYZ". Because in Jan-2006 I had over 6 years of S/W Experience.
NO. your experience with the current employer will never count. but there is another high risk possibility like converting you to high profile job within same company with other due formalities. but tough one to convince uscis but doable.


My Employer suggested that I could have filed in EB2 & the lawyer could have proceeded accordingly.

2) If there is a way I can still file in EB2, how can I do it?
What documents can I show to the lawyer to have him re-apply in EB2?
Incase, the EB2 gets rejected, then can I re-apply in EB3 again?

What can be the impact to my Green card procedure?

GURUS: Your quick answer would be appreciated as I have to pay the fees to the lawyer for I-140 stage. Please suggest.

priority date is very critical now a days. one day may cost you 1 decade. if you really wish that you need to come under eb2 then to be on the safer side its better to file the i140 petition based on the approved labor. once i140 is approved then you have the option to retain the same priority date irrespective of whether you continue filing i485 in eb3 based on this labor or start your greencard from scratch.

Thanks,
S
Click to expand...
 
Thanks for the reply.

Eventually, I got to know that since my designation is mentioned as "Programmer Analyst" I was applied in EB3 as this title is eligible only for EB3. And my offer letter has the same designation.

To apply in EB2, my designation should have been "Software Engineer".

The options for me are:
1) I re-apply in EB2 afresh, saying I am promoted to Software Engg(when my Employer promotes me, which I think he would do).

2) I use pre-approved EB2 labor from my own Employer (earlier applied for person who has left the company), saying as I am promoted to Software Engg (when my Employer promotes me, which I think he would do).

Questions:
1) If EB2 gets approved through any of these options, then I am back on-track. no worries. If you can, could you please make me aware if I should be alert/aware or take care of necessary things while proceeding for I-140/485 stages?

2) In any of these options, if say badluck my EB2 gets rejected, then can I still file my I-140 through my current approved EB3 Labor....Am I right? Please suggest.

I have to decide this soon (in this week).

Thank You!

Regards,
S
 
seema_579 said:
Thanks for the reply.

Eventually, I got to know that since my designation is mentioned as "Programmer Analyst" I was applied in EB3 as this title is eligible only for EB3. And my offer letter has the same designation.

To apply in EB2, my designation should have been "Software Engineer".

The options for me are:
1) I re-apply in EB2 afresh, saying I am promoted to Software Engg(when my Employer promotes me, which I think he would do).

2) I use pre-approved EB2 labor from my own Employer (earlier applied for person who has left the company), saying as I am promoted to Software Engg (when my Employer promotes me, which I think he would do).

Questions:
1) If EB2 gets approved through any of these options, then I am back on-track. no worries. If you can, could you please make me aware if I should be alert/aware or take care of necessary things while proceeding for I-140/485 stages?

2) In any of these options, if say badluck my EB2 gets rejected, then can I still file my I-140 through my current approved EB3 Labor....Am I right? Please suggest.

I have to decide this soon (in this week).

Thank You!

Regards,
S
Click to expand...

its better you have a consultation with good immigration attorney. there are too many things to consider and high pitfalls in stepping up from eb3 to eb2 with the same employer by getting promoted.

currently the labor that was approved is valid indefinetely as long as its not used for someone else. BUT there are various proposal to limit labor validity to 45 days.
 
As the experience of 3-1/2 years with my current employer does not count, how about leaving my current Employer (who filed my EB3) & I join another company for 3-4 months through H1 transfer. Then I RE-JOIN this same company back so that I can show my real total Software Experience of 6-1/2 years & then file in EB2 category.

I have a Bachelor's of Science degree(Physics + Computer Science as an applied component), a 15 year degree in India + GNIIT Degree, completed 3 years of course.

Would that make sense or has any complications?
 
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