I-140 potential denial on 5+ exp not fulfilled

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visarules

New Member
This is regarding the 5 years of experience required for EB2 I-140 experience.

1. I started my degree in 1996 and came out of college in 2001 and started working full time since then.

2. I have proof of work experience from 2001 to 2013.

3. My current employer hired me in 2008 on H1 transfer and then re-hired me in 2009 on same H1. I worked for another company for six months and came back to current company while H1-transfer was still processing with the company that I worked for 6 months. But, let's say my current company that is filing my I-140 hired me in 2008.

4. Now, I have 7 years experience before my current employer which is more than 5 years.

but here's the part where there is a problem:

5. Although I came out of college in 2001, I still had papers remaining as backlog. I cleared the required papers to qualify for a degree in 2004 and so my degree says I passed my bachelor's in Engg in 2004. But there was still a cpl of papers that I cleared in 2005 so I have marksheets that have 2005 timestamp.

6. From 2004/2005 to 2008 I am not completing 5 years of experience.

7. My six years of H1-B visa is getting over in Sept 2013.

My current company has approved PERM on EB2 but now we are seeing this problem and it appears my I-140 will be denied. I did not know of all these rules that is making all my 12 years of experience null and void and leaving me with less that 5 years of experience that I can show for I-140.


What are my options? Is current employer experience not accountable at all?
 
Experience earned AFTER obtaining a degree is usually what counts. Since you did not technically graduate until 2004, you did not have the required 5 years experience AFTER graduation.

Experience with current employer cannot be used toward I-140 work experience requirement.

When was your PERM approved? When did your employer file I-140?
 
nkm-oct23 said:
Experience earned AFTER obtaining a degree is usually what counts. Since you did not technically graduate until 2004, you did not have the required 5 years experience AFTER graduation.

Experience with current employer cannot be used toward I-140 work experience requirement.

When was your PERM approved? When did your employer file I-140?
Click to expand...

PERM was approved about two weeks ago. I140 hasn't been filed yet. So my 5 years of work with current employer is useless. What are my options now. What can I do?
 
First of all, thanks for your responses.

I meet the job requirement as posted in PERM. The problem is that I did not know and my company could not verify at the time that exp should be from year 2004 and not 2001. They had all my details back then too. Now looking at the link you posted:

"Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty."

It says current or former employers which means current employer experience can be added to the 5 years requirement right? If I can add my current employer exp then I can count from 2004 to 2013.
 
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When was PERM filed? Is the PERM filed on your behalf or is there Labor substitution involved?
 
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Word on the street has been that one cannot use any experience gained with the petitioning employer. If that is incorrect, you have a good chance of approval under EB2 since you would have more than the required 5 yeard experience AFTER obtaining your degree. See this blurb from DOL regulations which seem to support the theory that one cannot use current experience unless it is substantially different from the PERM job:

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:

    1. 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
    2. The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.
 
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