EB3 to EB2 switching - Lawyers are discouraging me. Are they correct?

A

arrakis

New Member
UPDATE Jan 19 2007: I had a conference call with immigration lawyer to discuss my case. The questions I asked were different from the ones in Post#1. The questions I asked are listed in Post#14 of this thread (scroll down to view the post) The answers I got are pertaining to my case. I have my case details listed in Post #14. Hope this helps folks in similar situation. To see my findings please refer to Post#20. I will also post my findings in a new thread as well. Thank you everyone for responding to my queries.

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Original Post #1:

My EB3 (India) PD is Sep-2001. In May-06 I completed my Exec. MBA degree from an Ivy.

My lawyers told me it will take atleast another year+ for the paper work to complete (Labor Cert & I-485 filing). Their recommendation is not filing for EB2 and just waiting it out. I cannot switch to a different lawyer since they are company lawyers.

Question:

1) Since my EB3 priority date will be recaptured and hence will be current for EB2 - this will enable me to get my I-485 processed without any delay - Am I correct?

2) Are the lawyers blowing smoke up my @$$? What will be the expected length of time to get the process completed?

3) Any other guidance in this regards will also be helpful. (advice, warning, loopholes, strategy, thoughts, ideas, etc.)

Any help will be much appreciated.

Thanks.

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EB3 - PD Sep/01 (India)
 
Last edited by a moderator:
This is what I know . You would need to cross check this with a lawyer

1. Your job needs to have the requirement for EB2 ie Masters,

2.While porting the priority date you need to qualify for EB2 as of that date so Sep 2001 were you qualified to apply for EB2.This is what the lawyer told me and you might want to cross check this ..
 
I am in the same boat!. My lawyer has been giving me the exact same advise for the past year or so now and he is not a company lawyer! Although I now know that they are as clueless as we are and I should have switched back then.

EB3 ROW PD Aug2003
 
EB-3 to EB-2 porting

1. You can get PD from EB-3 to EB-2 and vice-versa.

2. It will be simple if you change the company though I am not sure of the consequences by staying put in the same company and applying for EB-2.

3. Let us say you move to comp-B that comp-B can use your experience and education now and apply for PERM EB-2. When you are applying for I-140 with comp-B you give them the old I-140 approval copy. You will get that PD provided the previous company did not revoke their I-140 application.

Some say it does not matter whether they revoke it or not. But so far many have been successful in porting PD.

Porting PD does not have anything to do with prior experience etc...all that is separate picture it will be scrutinized based on job req and your qualifications.
If you have old PD from an approved I-140 you get that PD that is it.

Some have even received ability to pay RFEs to prove their ability to pay from the old PD, but you can counter it by simply saying the new labor and new I-140 should have nothing to do from that PD. PD belongs to the applicant.
 
unitednations said:
That's correct. There are two ways to do this:

1) File new labor/140 and ask for priority date transfer. USCIS frequently has been asking in RFE's to show that person and company met the requirements of the new perm/140 as of the priority date transfer. This is incorrect and a lawyer with half a brain would be able to navigate this.
Click to expand...

Thanks UN. Can you please clarify what you meant by "in RFE's to show that person and company met the requirements of the new perm/140 as of the priority date transfer" -

i) do you mean that I should have been qualified to apply under EB2 in Sep-2001 (my EB3 PD)? -OR-
ii) do you mean I should be qualified in xx-2007 when the paper work will actually be applied and transfered?

Also, My EB3 was an RIR. Can the new Labor for EB2 be under PERM?

Regards.

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EB3 (India) - PD Sep/01
 
gc_retrogress said:
1. You can get PD from EB-3 to EB-2 and vice-versa.

2. It will be simple if you change the company though I am not sure of the consequences by staying put in the same company and applying for EB-2.

3. Let us say you move to comp-B that comp-B can use your experience and education now and apply for PERM EB-2. When you are applying for I-140 with comp-B you give them the old I-140 approval copy. You will get that PD provided the previous company did not revoke their I-140 application.

Some say it does not matter whether they revoke it or not. But so far many have been successful in porting PD.

Porting PD does not have anything to do with prior experience etc...all that is separate picture it will be scrutinized based on job req and your qualifications.
If you have old PD from an approved I-140 you get that PD that is it.

Some have even received ability to pay RFEs to prove their ability to pay from the old PD, but you can counter it by simply saying the new labor and new I-140 should have nothing to do from that PD. PD belongs to the applicant.
Click to expand...

Thanks gc_retrogress. I wish I could switch my company for the sake of hastening up the process. Unfortunately (or fortunately) the company has been great to me. I couldn't have asked for a better employer when I was getting out of school 7 yrs back.

Though this does raise a good question: In Willy's reply he(she?) mentioned that EB2 will require a new job description. Does that mean I can switch from my currentl field to a different one - engineering management -to- consulting or finance and yet retain the PD for my initial EB3 filing????????

If yes, then how do I continue to work? on my 7-9 year H1 I'm on? Is H1 portability free from similar job clause?

Thanks again everyone!

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EB3 (India) - PD Sep/01
 
Oh yeah if you switch from Engineering to Management, it means you are longer in the old job position, that means that in the end theory wise you cannot use the old labor I-140 etc. You need to file new PERM and new I-140 and you can port PD.

One good thing is you can file EB-2 PERM for the new position, I hope the new position is EB-2 capable. But the drawback is you cannot use the experience gained from the current company and use it for another job in the same company. PERM and I-140 will not be approved.

arrakis said:
Thanks gc_retrogress. I wish I could switch my company for the sake of hastening up the process. Unfortunately (or fortunately) the company has been great to me. I couldn't have asked for a better employer when I was getting out of school 7 yrs back.

Though this does raise a good question: In Willy's reply he(she?) mentioned that EB2 will require a new job description. Does that mean I can switch from my currentl field to a different one - engineering management -to- consulting or finance and yet retain the PD for my initial EB3 filing????????

If yes, then how do I continue to work? on my 7-9 year H1 I'm on? Is H1 portability free from similar job clause?

Thanks again everyone!

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EB3 (India) - PD Sep/01
Click to expand...
 
Thanks again.

To summarize:

i) I can keep my Priority Date.
ii) I can move from company A to Company B with a completely new Job Description and file a new LC/140 under EB-2.

So how do I work for the new company?
My H1-B was issued for an Engineering related job and is my 3rd extension. Can I work on this H1-B even though my job is different at Company B?
Is the 3rd extension (7-9 year) of H1-B portable?

Regards.

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EB3 (India) - PD Sep/01
 
If you are moving to company-B, you need a new H1, if you are in 7th year you send in the old copy of approved I-140 copy you will get the new H1 extended with company-B.

Now the job profile could be different but with your past experience and a new degree you qualify for the new H1 with company-B.

Not only that your new PERM and I-140 will make you even more unique because you have Engg+Exec MBA. Now not many have that in the market. I mean for the immig puposes. If only you can find a job or the employer which/who can explain your job profile and your matching skills then your case is a simple pass through for approval.

arrakis said:
Thanks again.

To summarize:

i) I can keep my Priority Date.
ii) I can move from company A to Company B with a completely new Job Description and file a new LC/140 under EB-2.

So how do I work for the new company?
My H1-B was issued for an Engineering related job and is my 3rd extension. Can I work on this H1-B even though my job is different at Company B?
Is the 3rd extension (7-9 year) of H1-B portable?

Regards.

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EB3 (India) - PD Sep/01
Click to expand...
 
Change through different company

Here is my attorney has advised

Switching from EB3 to 2 better be a different employer..specially if you are working for a small company.

Due to ability to pay a small employer will have a hard time for EB 2 approval and USCIS will be more curious about the change in skills and position...it could put your current 485 in jepordy.


I am EB-3 with jan-03 as priority date...and work for a small employer.....I chaecked with 2 attorney and both of them advised not to do it even though my employer was willing to proceed.....

So i decided to go what my attorney says and decided not to proceed.....

Every one is in different situation and should consult an attorney.....
 
Thanks UN and 2240968.

All the replies have made me rethink the whole scenario. Perhaps these are the questions I'm seeking the answers to:

My details:
- Category: EB-3 (India)
- Priority Date: Sep-2001
- I-485 filed: Mar-2005
- H1-B stamp on passport; valid till Aug-2009 (7th-9th year extension). No EAD/AP filed - went for H1-B extension instead

* Currently working for a semiconductor company in engineering mnmgt
* BS in Engineering from a top tier school in US
* Exec. MBA from an Ivy League in May-2006
* 8+ years of semiconductor work experience

Questions:
1) Is it possible for me to quit my current engineering management job and join another company working in finance or strategy?
If yes,
- Can I transfer my H1-B? (even though this is my 7-9 year extension and was issued for an engineering job)
- Can the new employer file for EB2?
If no,
- How can I work for the new company?

2) Since my LC and I-140 are approved, can I retain my Priority Date even if my current employer withdraws my application (LC, I-140 etc.) if I move to a new employer?

I apologize for being so anal and repetitive.

Regards and thanks in advance. :eek:
 
Hi Gurus,

I am frequently reading this forum and found you guys are giving valuble sugessions/advises/warning

I have been working with my present employer since may,2004. Employer substituted EB3 labor with PD nov 2002 and my I-140 also approved one year back.I have completed my 5 years period in USA.I am working with same client since may 2004. Client is frequently pressuring me to take up full time position,but I am not in position to take up the full time position due to my GC.Client also ready to process EB-2 labor ( I have 8 years of experience and also have MS in elec eng).

Present employer also good person and also telling me take full time position if I am interested.

Can you please guide me ?

1. Can I continue with same employed with same GC process? or
2. Can I process EB-2 labor and porting PD from EB3 to EB2 with same employer
3. Take the full time position and process GC and porting the PD?

Please advise me.

Thanks in advance
 
Porting EB3

Hi guys,

I have situation like

1) My Eb2 got approved wit my Current emloyer with PD 2006 Feb.

2) I-140 approved with RFE , i had issue abut my 4 - year engineering and Ability to pay, finally it got approved.I have been here in USA since 2000.

3) Now i have another employer of my friend would want to give me Eb3 labour (Pre approved 2002), i wanted to file Eb3 by not switching my current employer.

4) then once i get my Eb3 approved then can i PORT my date for EB2 with my current employer filing my I-485, I am not going to change any job here.

Do you guys see any issue.

I appreciate you help.

Thanks
ashish
 
unitednations said:
That's correct. There are two ways to do this:

1) File new labor/140 and ask for priority date transfer. USCIS frequently has been asking in RFE's to show that person and company met the requirements of the new perm/140 as of the priority date transfer. This is incorrect and a lawyer with half a brain would be able to navigate this.

Once priority date is transferred then you write to uscis to adjudicate old 485 with new priority date.

2) if you decide not to ask for the priority date transfer or they don't give it to you then once new 140 is approved then take both 140 approvals and file 485 explaining how a visa is immediately available to you.


-----------------------------------------------

Both scernarios have been tried/tested with positive results (none were negative that I am intimitely aware of)
Click to expand...

Hello united nations,

I have a question on porting PD's.I have approved 140 WITH pd 2004.Recently my previous LC with same employer has approved PD 2003.Can i port the 2003 PD.Can i use the same 140 Aapproval copy or Do i need to apply again 140 for this LC?

Thanks in advance.
 
Here is the UPDATE with all the answers from the lawyer pertaining to my case.


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arrakis said:
My details:
- Category: EB-3 (India)
- Priority Date: Sep-2001
- I-485 filed: Mar-2005
- H1-B stamp on passport; valid till Aug-2009 (7th-9th year extension). No EAD/AP filed - went for H1-B extension instead

* Currently working for a semiconductor company in engineering mnmgt
* BS in Engineering from a top tier school in US
* Exec. MBA from an Ivy League in May-2006
* 8+ years of semiconductor work experience

Questions:
1) Is it possible for me to quit my current engineering management job and join another company working in finance or strategy?
If yes,
- Can I transfer my H1-B? (even though this is my 7-9 year extension and was issued for an engineering job)
- Can the new employer file for EB2?
If no,
- How can I work for the new company?

2) Since my LC and I-140 are approved, can I retain my Priority Date even if my current employer withdraws my application (LC, I-140 etc.) if I move to a new employer?
Click to expand...

1) Is it possible for me to quit my current engineering management job and join another company working in finance or strategy?
If yes,
- Can I transfer my H1-B? (even though this is my 7-9 year extension and was issued for an engineering job)
Yes! The 7th-9th year extenstion is not tied to GC paperwork. It can be transferred to a new company with a new job description. Caution: Ensure that your new company has filed for premium processing and x-ferred over the H1 before quitting your job.

- Can the new employer file for EB2?
Yes. And since my I-140 is approved, I can use my PD of Sep-2001 (all I need is the copy of the approval notice of the I-140)

If no,
- How can I work for the new company?
On the H1 that I have (7-9 year extention)

2) Since my LC and I-140 are approved, can I retain my Priority Date even if my current employer withdraws my application (LC, I-140 etc.) if I move to a new employer?
Yes. I can retain my PD even if my employer withdraws the application. It belongs to me since I-140 is approved (need to retain a copy of the first I-140 approval to attach with the future LC/I-140 filings)

In Summary:
  • 3rd extension of H1-B (7th-9th year) are can be transferred to another company even if the job description has changed. It is basically like having the 4th-6th year extension where you need to make sure your paperwork for GC is filed before the 9th (nee 6th) year starts.

  • Revocation of GC paperwork (LC/I-140) by the employer does not affect the 3rd ext. of H1-B.

  • Original Priority date can be used for future filings if 1) the first employer does not revoke the paperwork for I-140 etc. (i.e. I-140 was pending when new LC/I-140 filed by the new employer), or 2) if the original I-140 had been approved before the transfer to the new company/filing of the new LC/I-140 by the new employer.

  • Maintain a copy of all your original I-140 approval for future filings of LC/I-140's.

  • Job change (with new job description/field of work) is possible if one is on his/her 3rd ext. of H1-B (this is my current situation - I'm counting on the new employer to file a new EB2 LC/I-140 to file for me and use my EB3 PD of Sep 2001)
 
You mean we need to have a copy Original I-140 approval notice which is held by employer or if we print a copy of I-140 approval from USCIS website is enough for future PD transfer from different company.


arrakis said:
  • Maintain a copy of all your original I-140 approval for future filings of LC/I-140's.
Click to expand...
 
StillAlive said:
You mean we need to have a copy Original I-140 approval notice which is held by employer or if we print a copy of I-140 approval from USCIS website is enough for future PD transfer from different company.
Click to expand...

As far as I know a copy of the original or paperwork from the website is sufficient. I have a copy from the lawyers of my I-140 thus am not too sure of it.
 
Follow up question

I have follow-up question on the following:

2) Since my LC and I-140 are approved, can I retain my Priority Date even if my current employer withdraws my application (LC, I-140 etc.) if I move to a new employer?
Yes. I can retain my PD even if my employer withdraws the application. It belongs to me since I-140 is approved (need to retain a copy of the first I-140 approval to attach with the future LC/I-140 filings)
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Can I retain my PD even if my old employer "revokes" the I-140(after approval) ?
 
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