Eb3 to eb2 porting-gurus please help

[gc4me2009]

Guys,

I am sick and tired of this EB3-I train like all others. Finally I am at a point where I am ready to spend some extra bucks and take that extra risk in porting to eb2-india. I am with my sponsoring employer for last 4 and a half years my PD for eb3-india is July 2004. 140 approved in 2004. 485 applied in 2004. 2 FPs done. 5 EADs & 5 APs thus far and no end in sight.

Q1) Can I apply for eb2 PERM labor with same employer again? then what are next steps?

Q2) Can I then apply for second 140 with same employer although I have my eb3 140 approved? If so any risk of losing my eb3 140? or are they separate applications?

Q3) If in case my eb2 140 and labor are both approved can I file separate 485 based on eb2 140 and labor? or will I have to first withdraw my already pending eb3 485?

Q4) In case I apply for 485 based on eb2 then how can I port the eb3 PD to eb2 PD? exact process?

Q5) In case my eb2 140 is rejected will I lose my existing approved eb3 140/485 as well?

Anyone who has gone through this can you please guide me? Or anyone with any knowldge please answer my questions.

 

[TheRealCanadian]

Q1) Can I apply for eb2 PERM labor with same employer again? then what are next steps?

Nope. Your experience with your current employer cannot be counted. It's obvious that they don't require 5+ years of experience, since they hired you without it.

The only hope is an LC for a substantially different job, but I'd expect that to face some huge scrutiny at the I-140 stage.

 

[Jackolantern]

Q1) Can I apply for eb2 PERM labor with same employer again? then what are next steps?

It is possible, but difficult and problematic because they generally don't recognize experience with the same employer. You would have to be applying for it with a different job with the same employer, unless the original job description for your labor certification already required a Master's degree but your employer chose to file as EB3.

Q2) Can I then apply for second 140 with same employer although I have my eb3 140 approved? If so any risk of losing my eb3 140? or are they separate applications?

They are separate. Filing a new one doesn't cancel the old one.

 

[Jackolantern]

Nope. Your experience with your current employer cannot be counted. It's obvious that they don't require 5+ years of experience, since they hired you without it.

That's not true, as many employers choose to file as EB3 even though the job and employee could qualify as EB2. The EB3 category only sets a minimum requirement for qualifications, not a maximum one. A job can require a PhD and 20 years experience and still be filed as EB3.

This happened to somebody I know who has a Masters and over 20 years experience. The job required a Masters and several years experience, but it wasn't until his I-140 was approved that he found out it was EB3. He didn't understand the intricacies of the process and so he didn't have the knowledge to prod the employer and lawyer into filing as EB2. Luckily he is in EB3 ROW and his PD became current after about "only" a year of waiting after the I-140 approval, and is still current.