DOL restrictions to minimum requirements for EB2

L

langada.tyagi

Registered Users (C)
Hi,

I need you advice.

I have Labor and 140 cleared under EB3 (worldwide) and waiting for 485 to file. PD is December 2005. I am software developer/engineer

I asked my company lawyer to file for EB2 since EB2 is current. This is what their response is.

"DOL has come up with what they consider to be job classifications and separated those into the job zones. There are very few which make it to zone 5 and they include such things as surgeons, lawyers, physicists and the like, in other words highly specialized positions requiring a higher than normal education path and many years experience. There are no computer related positions listed under Job Zone 5. All our positions fall under Job Zone 4 which does not lend itself to EB2 filing. We can’t file under EB2 due to DOL restrictions to minimum requirements for positions."


Is it true that computer professionals now can not file for EB2? Is there any way that EB2 can be filed? Is it not possible?


Please help.
 
The condition is that your job you do should require MS. Computer professionals do it all the time. Your lawyer is BS'ing you. The company lawyer has the fiduciary duty towards company, not you. If the company wants to keep you on leash, the lawyer will go along even it means having to tell you lies.

Sadly, if you company doesn't budge, there's not a whole lot you can do.
 
I think the agency is tight up on eb2 filing. I read on Oh website that people is rejected for Eb2 by just qualifying one of two requirements.
 
I agree with "gravitation".this sort of thing happens in a lot of blood sucking consulting companies. the more they can make you stay with them,the better for them. If you have leeway,confront them with proof that what they are saying is b.s. Good Luck!!
 
gravitation said:
The condition is that your job you do should require MS. Computer professionals do it all the time. Your lawyer is BS'ing you. The company lawyer has the fiduciary duty towards company, not you. If the company wants to keep you on leash, the lawyer will go along even it means having to tell you lies.

Sadly, if you company doesn't budge, there's not a whole lot you can do.
Click to expand...
Thank you all for the responses.

gravitation,
you said The condition is that your job you do should require MS." How do one determine whether software developer requires MS or not. Who determines that?

Is there any way EB2 can be filed. What should I tell my compary lawyer? I told him my friends in other companies are able to file EB2. they are also software developers. He says "The other companies should not be able to file EB2 for software engineers but I can't say what another company's hiring history would allow and what they are willing to risk in filing a case which surpasses the minimum requirements allowed by DOL."

How do I convince him. Is there any documentation or link which I can show him which states that software developers can file EB2?

Thanks again all..
 
langada.tyagi said:
Thank you all for the responses.

gravitation,
you said The condition is that your job you do should require MS." How do one determine whether software developer requires MS or not. Who determines that?

Is there any way EB2 can be filed. What should I tell my compary lawyer? I told him my friends in other companies are able to file EB2. they are also software developers. He says "The other companies should not be able to file EB2 for software engineers but I can't say what another company's hiring history would allow and what they are willing to risk in filing a case which surpasses the minimum requirements allowed by DOL."

How do I convince him. Is there any documentation or link which I can show him which states that software developers can file EB2?

Thanks again all..
Click to expand...

Your lawyer is right. After PERM introduced, DOL is going by Onet which classify the occupations and requirement for each job classification. Most of the engineering and computer occupations fall under job zone 4, for which minimum/normal requirement is Bachelors degree. Your employer can not say MS is normal or minimum requirement. If your employer asks MS as minimum requirement, they have to prove that it is “business necessity” if DOL issues any NOF or Audit. Some lawyers/employers do not want to take that risk. Some lawyers/employers are aggressive or comfortable in filing EB2 for computer occupations. I do not how strong DOL is enforcing this requirement now as everyone going for EB2.

As per book/rule your lawyer is right, as most of the computer jobs do not qualify for EB2 as per rule.
 
langada.tyagi said:
Thank you all for the responses.
gravitation,
you said The condition is that your job you do should require MS." How do one determine whether software developer requires MS or not. Who determines that?
Click to expand...

Employer decides that.
 
Employer decide that.

If DOL have audit or RFE, Employer have obligation to prove Business Necessity to have MS degree for proposed job.
 
If that were true. MS in all engineering and Computer Science degrees will be worthless. Different jobs need different experience and expertise. Employers decide what they want for a specific job.

It's true that EB2 is more work for lawyers (usually without extra pay), so they're very happy to steer clear of it.

perm_lc said:
... Most of the engineering and computer occupations fall under job zone 4, for which minimum/normal requirement is Bachelors degree. Your employer can not say MS is normal or minimum requirement. If your employer asks MS as minimum requirement, they have to prove that it is “business necessity” if DOL issues any NOF or Audit. Some lawyers/employers do not want to take that risk. Some lawyers/employers are aggressive or comfortable in filing EB2 for computer occupations. I do not how strong DOL is enforcing this requirement now as everyone going for EB2.

As per book/rule your lawyer is right, as most of the computer jobs do not qualify for EB2 as per rule.
Click to expand...
 
langada.tyagi,

I was looking to change job in mid 2005 when India EB2 was current and PERM labor was taking 2 months to approve. This was exactly what I was told by the new company lawyer. Lawyer said they were not getting India EB2 perm labors approved unless the labor says it is for manager. I did not take that route then.

Once USCIS retrogressed India EB2 in October '05, DOL started approving perm EB2 faster. When PERM was introduced in 2005 USCIS and DOL did not want India EB2 to take advantage when it was current. This was not a coincidence it is just how DOL and USCIS together manage masses.

I think your current lawyer is following law by letter but the fact is that DOL is going easy on India EB2 PERM now. I am sure your labor will be approved within a week in PERM, lot of people with Bachelors +5 are getting approved in EB2.
 
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