EB2 after getting approved I-140 EB3

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royl66

Registered Users (C)
Is it doable ???

In all the other threads I read I couldn't find a case just like mine...

I got PERM approval and I-140 APPROVED under EB3 last August. Beacuase of the horrific 4.5 years retgression there (rest of the world) my employer agreed to try EB2 for me (which is still current, so far...). I have BA + 5 years of post bachulerate experience. So to be on the safe side (not to lose anything already gained by the first LC + I140), a "sister company" which is formally a different employer, started a new process for me for the same Job Title, requiring this time BA+5 year progressive experience (to qualify for the EB2).

We filed the new PERM last week and got "Denied" after 5 days, without even receiving the standard Sponsorship Verification email first (which makes me believe the denial was either errounious or very technical, coz we did the exact same advertising and filing as with the first PERM).

My question:

1. Did anyone get an approved EB2 PERM/I140 based on BA+5?

2. Did anyone get approved on a second LC, from a different employer, after 1st was already approved?

3. Do I get to retain my original PD from first LC for the same job title exactly, but different employer and different EB category ???

4. Is there any risk to my previous approved EB3 LC/I140 from all these trials to upgrade to a higher category or if I get rejected under EB2 I can always default back to my EB3 (waiting the 4.5 years retrogression...) ???

Much Obliged folks, and God bless...
 
Actually you can use the denial to your advantage. Since your EB2 PERM got denied, the denial letter will have the certifying officer's name on it. Have your attorney call the certifying officer for the reasons, and most likely you will be asked to make a few changes to fix the glitch and it may be approved there and then.
You don't have to worry about your approved I140. It stays static and you can use it to extend your H1B if the need arises, by 3 years. The only thing is that you will not be able to use its priority date on your new EB2 application since it is a different EB category.
 
Thnx CREATIVE10 for your reply... It's not too bad that I can't keep my original PD coz it wasn't such a "senior" PD anyway (Jul/05).

Would I be allowed to reapply the PERM immediately or is there any 30 days delay or something??? (remember - my main concern is to get the LC approved ASAP before any retrogression happens in the EB2 category as well)

Also - I'm still curious to hear if anyone had a case like mine being succesfully pulled out ???
 
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YOu can call the officer, get the reason for the denial and reapply immediately and call him again to make sure he has it and follow up with him to approve it if everything looks okay.
 
When I applied my LC, the attorney told me that although BS + 5 = MS, we have to use MS in the job requirement because EB2 requires advanced degree (which is MS or higher). Please verify with your attorney.
 
yoyo_godmom said:
When I applied my LC, the attorney told me that although BS + 5 = MS, we have to use MS in the job requirement because EB2 requires advanced degree (which is MS or higher). Please verify with your attorney.
Click to expand...


This is absolutely inacurate, YoYo. The job requirement can be either "MS" or "BS+5" or a combination (i.e. "MS or BS+5"). All three options qualify for EB2, and it all depends on what you actually posess.
If you donot posess the actual MS, yet the requirements specified only the "MS" option (without the alternative "BS+5") you will be rejected.

Please elaborate: Was your LC submitted under PERM? Did it get approved? how long was/is it pending? Which of the 3 option did you specify and what do you actually posess???
 
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Anyway - back to this thread's subjest: Can anyone who got an approved PERM EB2 based on BA/BS+ 5 please share some of his experience (such as: did his LC say only "BA+5" or "MA or BA+5"? how did he/she prove market necessaty? were they approved smoothly or with audit/delays? Are they experiencing any difficulties at the I-140 stage? etc....)

THANX !!!
 
royl66 said:
Anyway - back to this thread's subjest: Can anyone who got an approved PERM EB2 based on BA/BS+ 5 please share some of his experience (such as: did his LC say only "BA+5" or "MA or BA+5"? how did he/she prove market necessaty? were they approved smoothly or with audit/delays? Are they experiencing any difficulties at the I-140 stage? etc....)

THANX !!!
Click to expand...

BS/BA+5 got approved a lot in my company. Actually most perm cases from my comp are filled with BS/BA+5 ONLY.
According to the immigration person and also hired attorney firm, at least 100+ cases filled in July/Aug/Sept got approved and no audit so far (only 2 request for ad. evident).
There is no problem for I-140 stage and of course PERM, if you can clearly prove the experience is RELATED experience and Progressive in nature, plus obtain before joining employer and after receiving the BS degree ON HAND.
 
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Great to hear that Newbies, sure gives one some hope... In the meantime, my lawyer refilled my PERM application yesterday (BA+5) after its denial the first time. It appears that some "misterious" software glitch (according to my attorney) caused the application to be submitted only partially completed at the first time, and hence it was rejected on the spot (taking that "spot" 9 days...), before my employer even received the Sponsorship Verification email... I hope for better luck this time :)
 
1. I used only MS in PERM and it was approved in about 2 months
2. I read http://www.murthy.com/eb2.html and still think my attorney is correct (about the job description). The job requirement needs to put at least MS while the candidate qualifies if he has BS + 5.
Again...Please verify with your attorney.
 
Thnx for your reply YoYo. I can see from that link you attached the confusion. Anyway, in an INS circular discussing the EB2 category it explicitly says:

"The terms, “MA,” “ MS,” “Master’s Degree or Equivalent” and “Bachelor’s degree with five years of progressive experience,” all equate to the educational requirements of a member of the professions holding an advanced degree. The threshold for granting EB-2 classification will be satisfied when any of these terms appear..."

So basically, either way is good, but I would be concerned putting "MS" only if the applicant does not posses the actual "MS" or a foreign equivalent...

I'm glad you got your PERM approved. Good-Luck in the I-140 stage !!! (did you submit already?!?)
 
Read this...

You can use experience with current employer under 2 conditions.


(i) Actual minimum requirements. DOL
will evaluate the employer’s actual
minimum requirements in accordance
with this paragraph (i).
(1) The job requirements, as described,
must represent the employer’s
actual minimum requirements for the
job opportunity.
(2) The employer must not have hired
workers with less training or experience
for jobs substantially comparable
to that involved in the job opportunity.
(3) If the alien beneficiary already is
employed by the employer, in considering
whether the job requirements
represent the employer’s actual minimums,
DOL will review the training
and experience possessed by the alien
beneficiary at the time of hiring by the
employer, including as a contract employee.
The employer can not require
domestic worker applicants to possess
training and/or experience beyond what
the alien possessed at the time of hire
unless:
(i) The alien gained the experience
while working for the employer, including
as a contract employee, in a
position not substantially comparable
to the position for which certification
is being sought, or
(ii) The employer can demonstrate
that it is no longer feasible to train a
worker to qualify for the position.
(4) In evaluating whether the alien
beneficiary satisfies the employer’s actual
minimum requirements, DOL will
not consider any education or training
obtained by the alien beneficiary at the
employer’s expense unless the employer
offers similar training to domestic
worker applicants.
(5) For purposes of this paragraph (i):
(i) The term ‘‘employer’’ means an
entity with the same Federal Employer
Identification Number (FEIN), provided
it meets the definition of an employer
at § 656.3.
(ii) A ‘‘substantially comparable’’ job
or position means a job or position requiring
performance of the same job
duties more than 50 percent of the
time. This requirement can be documented
by furnishing position descriptions,
the percentage of time spent on
the various duties, organization charts,
and payroll records.

from: http://a257.g.akamaitech.net/7/257/...s.gpo.gov/cfr_2005/aprqtr/pdf/20cfr656.17.pdf
Page 697
 
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