EB3 to EB2 Is it worth to file??

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rsrinivas27

Registered Users (C)
I have my LC (EB3) and I-140 approved with April 2002 as PD but cannot file for EB2 with the same employer due to bachelors degree and current experience can't be used and I am on 7th year H1

One option is to find another employer who can file PERM (EB2) for me with 10 yrs of experience couting the experience with my current employer. Can We file PERM, I-140 and 485 without joining another employer? and port the previous PD of April 2002 to my new EB2 case.

First of all is it posible and second is it worth to go with a new GC process as I have to shell another $6-8K, Perm may take 6 months, I-140 another year (as they are processing April-May 2006 cases) without doing premium processing and then file I-485, wait for 6 months and use the EAD to work with my current employer.

Another option is to file under EB2 with the same employer but as exceptional ability showing Bachelors degree, Professional Engineer License, and 10 yrs of experience including the experience gained with current employer.

But in both cases, the EB2 process may take another 1-2 years.

Is it worth to file EB2 now if my EB3 PD is April 2002 or wait for 1-2 yrs to cross April 2002 and continue the EB3 process.

Any suggestions or advice please.
 
rsrinivas27 said:
cannot file for EB2 with the same employer due to bachelors degree and current experience can't be used and I am on 7th year H1
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I think you can file for EB2 with the same employer, under perm for a NEW position (not the same position) , The Labor for this new position can have 10 or 5 years experience as a requirement......Don't need to switch employers... check with your lawyer on this...
 
I verified with the lawyer, I cannot file with the current employer as the experience gained will not be counted.

centerq said:
I think you can file for EB2 with the same employer, under perm for a NEW position (not the same position) , The Labor for this new position can have 10 or 5 years experience as a requirement......Don't need to switch employers... check with your lawyer on this...
Click to expand...
 
rsrinivas27 said:
I verified with the lawyer, I cannot file with the current employer as the experience gained will not be counted.
Click to expand...


Your Attorney is wrong , he does not know how to file it.
Check with Rajiv Khanna's Office. They have done it successfuly for few of my friends.
 
PERM does not allow to count the experience gained with the same employer if I file under EB2. I have less than 5 yrs of experience before joining the current employer. However, I have now 10 yrs of experience total.
But not able to find another employer who can file my GC.

Did any one in the forum used the current experinece gained in PERM sucessfully?
 
you're incorrect.

you can use experience from your current company as long as the new position for which a new PERM is being filed is at least 50% different from the other positions that you've held within the company.

AND you can justify that this new position requires BS +5 years.

i know this because i have done this....


rsrinivas27 said:
PERM does not allow to count the experience gained with the same employer if I file under EB2. I have less than 5 yrs of experience before joining the current employer. However, I have now 10 yrs of experience total.
But not able to find another employer who can file my GC.

Did any one in the forum used the current experinece gained in PERM sucessfully?
Click to expand...
 
how can you show it as a different when you are doing the same work unless you got promoted like something from Senior developer to Manager where the job duties will change.

I tried to do as our attorney mentioned that the job responsibilities must be different compared to EB3 position.

Can you tell me how did you do?

smbaps
 
yes, when i said new position and new PERM application....i meant you will have to change your job or get promoted.


in my case...i've been with my employer for 7 years in 3 different roles...for my newest position i refiled PERM again under EB2 and now will try to transfer my old EB3 PD.

hope that helps.



smbaps said:
how can you show it as a different when you are doing the same work unless you got promoted like something from Senior developer to Manager where the job duties will change.

I tried to do as our attorney mentioned that the job responsibilities must be different compared to EB3 position.

Can you tell me how did you do?

smbaps
Click to expand...
 
I have been with the same employer from past 5 1/2 years.My designation got changed from senior to Lead developer.
Will this qualify to EB2? In addition to my previous role,will have more workload.
 
does your new job require BS + 5 years or MS + 1 year experience?

is your new job not comparable and more than 50% different than your old job?


smbaps said:
I have been with the same employer from past 5 1/2 years.My designation got changed from senior to Lead developer.
Will this qualify to EB2? In addition to my previous role,will have more workload.
Click to expand...
 
10.2 Is it possible to continue to use experience gained with the same employer as a requirement?

Yes. PERM delineates a standard that is similar to that which was used in the past, though it is arguably narrower. The rule adopts a variation of the exception articulated in Delitizer Corp. of Newton, 88-INA-482 (May 9, 1990) (en banc), where experience gained on the job in a dissimilar position may be utilized, so long as the employer can demonstrate that the foreign national was originally hired into or contracted to work in a job that is not “substantially comparable” to the job for which certification is being sought. A “substantially comparable” job or position is defined as one where the same job duties are performed more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on various duties, organizational charts, and payroll records.

With regard to a second exception, “infeasibility to train,” DOL asserted in the supplementary material to the regulation that the argument is rarely claimed in practice but will be maintained in acknowledgement of the legitimate interests of the business community.

For purposes of assessing experience gained with the employer seeking a labor certification, PERM provides that an employer is an entity with the same Federal Employer Identification Number (FEIN).


www.fragomen.com



smbaps said:
I have been with the same employer from past 5 1/2 years.My designation got changed from senior to Lead developer.
Will this qualify to EB2? In addition to my previous role,will have more workload.
Click to expand...
 
It is great to know that you can use the exp for EB-2.

The question though is how is this dealt at I-140 level. Can someone please clarify?

Nishokie did you get I-140 approval?
 
no i haven't gotten a I-140 approval but i feel confident...though you never know.

PD portability, minus revocation of the old I-140, should not be a problem. its the law. i think some folks on this forum have posted their experiences about their PD transfer.

gc_retrogress said:
It is great to know that you can use the exp for EB-2.

The question though is how is this dealt at I-140 level. Can someone please clarify?

Nishokie did you get I-140 approval?
Click to expand...
 
No I only wanted to know if a new I-140 will be approved or not based on the old Eb-3 I-140 that was approved with the same company.

Regarding PD transfer, what people fear is that it might come out at I-485 stage. Anyway it is totally different, I do not want to digress.

I only want to know the stats on how the INS is approving/denying new Eb-2 cases based on the approved Eb-3 with the same company.

Thanks
 
Does it matter if the new employer is in another state.
Will there be a problem in porting the old EB3 PD date to new I-140 EB2?
 
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