Eb-3 into EB-2 with a Employer

[Sergey_msq]

Hey there...

may be a typical situation, however in two words:
- 5 years of education (non-US, initially evaluated as BA for H-1b, later re-evaluated as MS for PERM)
- 4.5 years of experience by now (a bit more than 1 year of it - US experience)
- My EB-3 priority date is 2005, while EB-2 is current.

My employer filed EB-3 saying that it's not possible to file EB-2 with my experience and education (let's say I believe it as my diploma does not really say it's BA or MS - it says 'Higher education - 5 years' which may be confusing).

Questions:
1) Will it change the situation if I quit and start the process with the new employer?
2) Current employer says I can file EB-2 in December 2012 (?? have no idea where it came from - I don't have access to the corp lawyer). What would it mean?

Appreciate your answers.

--
Sergey

 

[littleadv]

Re 1: depends on what the problem is. If you gained your education while already being employed with that company - then changing employers may change things. If the problem is that the job description doesn't require MS - then you need to change job description (either with that or a different employer) to qualify. So it's hard to answer without knowing what the problem is.

2. If your priority date is 2005 for EB3, then you may become current soon. According to the visa bulletin, they're handling requests with priority date in July 2005, so in this case it doesn't make much sense to restart the process with EB2. The employer probably estimates based on the visa bulletin (if your priority date is somewhere to the end of 2005, then December 2012 makes sense, based on the past experience).

edit and after I reread your question, here's Re #2 you were really asking:

You should ask the employer why this date. Again, without knowing what the problem is it's hard to know what the solution should be. Maybe they mean that it will take another year to go through all the PERM process for EB2 again, or maybe they mean that you need to have additional experience to qualify for the "upgraded" job description, it's hard to tell. Anyway, if your priority date is in 2005 for EB3 - you're pretty close to become current as it is, so don't bother.

 

[Sergey_msq]

littleadv,

thanks for your reply!

2. If your priority date is 2005 for EB3, then you may become current soon.

Just to clarify - we are about to apply for PERM, so my 2005 will become current in approx 6 years... Way too long to wait vs current for EB-2. Unless you meant something else here.

Anyway, it's a good idea to try to find out why 12/2012...

 

[CanadaToUSA]

Sergey,

By saying

- My EB-3 priority date is 2005, while EB-2 is current.

I (and littleadv as well) thought your priority date is 2005 (meaing you already applied your PERM in 2005).

You will have 5 years of experience in December 2011. For EB2 you need bachelor plus 5 yrs of experience. Don't know why your lawyer is saying December 2012. But whatever the case is you cannot count the experience from current employer. You must change job and find a new employer to count all of your current experience. If you keep the current employer then you have to go with EB3.

 

[Sergey_msq]

Had a consultation with a lawyer.... well, I read a lot about not being able to use the experience from the current employer. Please correct me if i'm wrong, but it's NOT the case if the job duties are more than 50% different.

 

[littleadv]

Had a consultation with a lawyer.... well, I read a lot about not being able to use the experience from the current employer. Please correct me if i'm wrong, but it's NOT the case if the job duties are more than 50% different.

50% is hard to measure. It has to be significantly different, and my understanding from the lawyer of my company is that even if they claim that the position is significantly different, it will almost certainly trigger an audit (which may pass, of course, if the position is indeed diferrent, but will delay the PERM by several months, if not a whole year).