EB1- OR Category - No. of Ph.Ds in a company

K

kSekar

Registered Users (C)
Hi guys

I am under EB1 - Outstanding Researcher category. My I-140 is yet to be approved [hoping to get it approved within a couple of
weeks. I had an RFE and it was replied (Dec 01 2003)]. I got laid off a couple of months back and I got already a job in another
company involved in Research. Earlier when I applied for my I-140, I remember submitting a document that there are at least three employees doing R & D in the company (in our company there were around more than 40 Ph.Ds).

In the present job offer I got, there are only about 7 employees and out of which 5 are involved in R & D (with only one Ph.D).
If I include myself, it will be 2 Ph.Ds. My question is that is there any problem if I join a company where there are less than 3 Ph.Ds?

My question is difficult for my attorney to answer since there is no specific guidance on this point. However, he was able to speak with a government representative on Monday at a conference. He stated that at the moment the Immigration Service is taking a broad and liberal view on the term "same or similar job". This view looks only at the job itself and does not look at the company when analyzing whether a transfer to a new employer is satisfactory under the provisions of AC 21. Under this
view, the number of researchers at the company is irrelevant.

However, the representative also stated that this liberal view is
currently under review and that a stricter view may be articulated in official regulations sometime in the future. He did not know when this rule would be published.

So he advised that accepting this offer comes with some level of risk and mentioned that the law is not clearer on this point.

Any input on this from you guys?

Sekar
Boston
 
ksekar,

I don't find any problem in joining the company where no. of phd. people veries (2 or 3). But major prob I could think of is ur I-140 is not approved and u r joing somewhere else. If its a "calculated risk" by what i mean is if u r 100% sure there won't be any RFE generated then its fine. I am not sure how lawyers handle the case if RFE generated in cases like urs. But hey, this kind of situations happens in life, try to gather as many info as u can with possible best resources and take the final decision. All the best


Magic
 
Since your previous employer agreed not to withdraw your I-140 - you have to hope that there will be no other RFE in your case, or an RFE not asking for any employer information. If your previous employer can go even further and agree to answer any RFE as you are still employed by them - then there should not be any problems.

It is desirable that the fact that you are working for a different company never comes up during I-140 approval stage. I-140 is employer-specific and if all the means to answer any possible RFE using your previous company information are in vane - then your new company will emerge. I personally think that a new I140 petition will be required.

When your I-140 gets approved - you may consider not mentioning your new employer even on I485 stage. If you will be approved without RFE - fine. If there is an RFE related to your employment - send them AC21 letter. You should prove that your new "employer has at least three full-time researchers and documented accomplishments in academic field" No requirements for >3 Ph.D.s. in your company. Even you are not required to have Ph.D. if you have some OR qualifications. I would say that a letter from your company's R&D department / section chief stating how many full-time researchers they employ as well as the list of company research accomplishments should suffice.
Good luck,


EB12-OR
RD: 03-19-03
ND: 04-02-03
 
thanks.. 3 full time researchers

Hi Gegemon

Thanks for your nice reply and it clearly brings out the problem.
I already got one RFE on Sep 05 and the reply was received by them on Dec 01 2003. The RFEs were on couple of things. One is to show that I have at least three years of research experience ( I have about more than 12 years) and then a couple of reco letters (initially I submitted only six and now submitted five more). So I am hoping these two will take me through I-140 and my attorney feels that those are very strong evidences as well.

Regarding 3 - Ph.ds, my attorney was saying the same thing (whatever you mentioned) but was not specific. I remember providing a list of full-time researchers from my company while
filing for I-140.

The company where I plan to join is a small one with only one Ph.D who is the CEO and a retired Professor. The name of the company itself is xxxxRESEARCH INC. Basically the whole company is a R & D center where desgining and testing is done. He is running this small company for about more than 15 years and the number of employees are around 5 - 7 ( I am not sure whether 5 or 7). He is adding now three more employees which includes me and two other engineers. If this is the case it
is not difficult to show three full-time researchers. Basically at least 5 are full-time researchers. Research accomplishments will not be a problem as they support and supply tools to many national labs, NASA , industries etc and they do have documents.

From these points of view I hope there will not be any issue even if an RFE is generated at I-485 stage.

Anyway I am going to join only in January 1st 2004 and I do have about two more weeks to go. By that time I hope my I-140 will be approved and EAD will be in hand (or I can get the interim EAD).

Thanks for the inputs.

Sekar
Boston
 
after I140 gets approved - it does not matter

I think you should not have any problems. You will get your I140 approved most probably in early January 2004 (~3 weeks after RFE was received + holidays).

After your I140 gets approved - you can take advantage of section 106 (c) of the AC 21 in case if you need to mention your new employer. (You can consider not letting BCIS know about your new employer if you are sure that your previous employer will not try to revoke already approved I140).

In the case of AC21 - you will have to prove that: "the new job is in the same or similar occupational classification as the job for which the certification or approval was initially made." I think it relates mostly to the area of research you deal with rather than the number of Ph.D.s in your new company. Your new employer may not necessary possess all those characteristics (# of researchers, accomplishments, dependency on foreign workers) that made you eligible for OR classification through your previous employer.

This is my personal oppinion and your lawyer should be able to give you a better clarification of this subject.

Good luck!
 
attorney says wait till I-140 is approved

Hi Gegemon

Thanks for your input. I told my attorney about the points you posted here. He said that, it will be really aggressive if I accept the job offer before I-140 gets approved. He advised me to wait till I-140 gets approved and then notify BCIS of the portability issue. Only worry is when my I-140 be approved?
So I have to hold my breath till it is approved. The important negative point is that I cannot take up any job till I-140 gets through though I have a job in hand.

Anyway I never got anything done so easily in my life and this is not unusual. (note : My I-140 is pending still and it is already close to two years).

I always hope there is something good that will happen because of this delay.

Sekar
 
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