LCA Approved Under EB3 - PERM EB2 now?

E

elaine1518

Registered Users (C)
Hi folks,

My husband is a Senior Database Administrator and recently his LCA got approved (PD 03/2004) from Philly Backlog Center. All this time we thought he was EB2 since he had a master's degree and over five years experience at the time of LCA application. The lawyer also asked us to prepare for 140 and 485 concurrent filing. This morning, all of a sudden, the lawyer told us the case was actually EB3. We were totally devastated. It turns out he filed the LCA as requiring "MS with 2 years experience or BS with 3 years", which doesn't even make sense (MS is normally equal to BS+5 yrs).

In the frenzy to get some help, we called another attorney who told us we could file EB2 PERM and EB3 140 at the same time. Then we can port the EB3 PD to the approved EB2 PERM. We are not sure if this is going to be successful. Has anyone done similar things? Any advice on alternatives?

Many many thanks in advance!
 
Elaine,
I am not an expert but from all the reading on this forum I don't think you can file for 140 both EB2 and EB3 at the same time. I know off cases where you have an approved EB3 and can use that PD towards an EB2 filing but not anything more. In fact I noticed on another thread that some of the applicants that tried to reapply for 140 in EB2 and use the pd from EB3 found the EB2 application showed a new pd and not the pd they were looking to transfer from the previous application. I hope this helps.
 
Sorry to hear that. It's amazing how some lawyers are just plain stupid and get paid to screw people's lives.

Once you get a 140-EB3 based on a RIR-LC, you could then file a EB2-140 based on a PERM LC, and have the earlier PD from the EB3-140 "port over" to theh new EB2-140. That seems to the position of most if not all attorneys.


elaine1518 said:
Hi folks,

My husband is a Senior Database Administrator and recently his LCA got approved (PD 03/2004) from Philly Backlog Center. All this time we thought he was EB2 since he had a master's degree and over five years experience at the time of LCA application. The lawyer also asked us to prepare for 140 and 485 concurrent filing. This morning, all of a sudden, the lawyer told us the case was actually EB3. We were totally devastated. It turns out he filed the LCA as requiring "MS with 2 years experience or BS with 3 years", which doesn't even make sense (MS is normally equal to BS+5 yrs).

In the frenzy to get some help, we called another attorney who told us we could file EB2 PERM and EB3 140 at the same time. Then we can port the EB3 PD to the approved EB2 PERM. We are not sure if this is going to be successful. Has anyone done similar things? Any advice on alternatives?

Many many thanks in advance!
Click to expand...
 
Yes, you can not file for both EB2 and EB3 using the same LC, but once you have the EBx 140 approved, you could use that PD for subsequent EBy 140s, and port the earlier PD. x <> y is possible.

ameryki said:
Elaine,
I am not an expert but from all the reading on this forum I don't think you can file for 140 both EB2 and EB3 at the same time. I know off cases where you have an approved EB3 and can use that PD towards an EB2 filing but not anything more. In fact I noticed on another thread that some of the applicants that tried to reapply for 140 in EB2 and use the pd from EB3 found the EB2 application showed a new pd and not the pd they were looking to transfer from the previous application. I hope this helps.
Click to expand...
 
ameryki said:
Elaine,
I am not an expert but from all the reading on this forum I don't think you can file for 140 both EB2 and EB3 at the same time. I know off cases where you have an approved EB3 and can use that PD towards an EB2 filing but not anything more. In fact I noticed on another thread that some of the applicants that tried to reapply for 140 in EB2 and use the pd from EB3 found the EB2 application showed a new pd and not the pd they were looking to transfer from the previous application. I hope this helps.
Click to expand...

Thanks, Ameryki! So you mean you've seen cases where people use approved EB3 and carry the PD over to an EB2 filing? At what stage is this carry-over done? Could you please point me to any thread that you've come across on this subject?
 
GotGC?? said:
Sorry to hear that. It's amazing how some lawyers are just plain stupid and get paid to screw people's lives.

Once you get a 140-EB3 based on a RIR-LC, you could then file a EB2-140 based on a PERM LC, and have the earlier PD from the EB3-140 "port over" to theh new EB2-140. That seems to the position of most if not all attorneys.
Click to expand...

Thank you, GotGC! We were also appalled at how incompetent this "experienced immigration lawyer" is. If only we knew it when we filed the LCA! :mad:

So it looks like there is still hope to get this screwed-up situation right. If his PD (ported from EB3) is current in the EB2 category when his new EB2 PERM gets approved, can we file EB2 140 and 485 concurrently?

Now the problem is how we can persuade his employer to spend another $$$$ to get the PERM
 
elaine1518 said:
So it looks like there is still hope to get this screwed-up situation right. If his PD (ported from EB3) is current in the EB2 category when his new EB2 PERM gets approved, can we file EB2 140 and 485 concurrently?
Click to expand...

I'm not entirely sure at what exact stage this "port" happens -
a. when you file the new EB2-140, or
b. after you just file the EB2-140 based on the PERM LCs PD and then port over the earlier PD when you file the 485.

May be st4rguitar can answer?
 
I have found some information on Murphy Law that talks about exactly my husband's situation:

Approved I-140s and Job Mobility - Transfer of the Earlier Priority Date
©MurthyDotCom
The priority date from an approved, valid I-140 petition may be transferred to a new I-140 petition. This is another situation in which premium processing would prove advantageous. Since I-140 premium processing would allow for faster approval of the I-140 petition, the priority date potentially then would be available for transfer to a later-filed employment-based green card case, at the I-140 stage. This later-filed I-140 petition could be with the same employer (for a different job) or with a new employer in a new position.
©MurthyDotCom
[Editor's Note : The provisions for transfer of the earlier priority date are unrelated to AC21 portability. Having solely an approved I-140 petition (without an I-485 that has been pending for 180 days) does not give the individual eligibility for AC21 green card portability. We have received some questions about the job mobility referred to in the caption of this subsection, and want to be absolutely clear that we are not referring to AC21 portability. Changing jobs after approval of an I-140 where an I-485 has not been filed means that the green card case will have to start over, right from the labor certification (LC) stage in LC cases. However, it is possible to request to retain the priority date in a later I-140 petition, once there is an approved I-140 petition in an earlier case with a different employer or even for a different position with the same employer. Therefore, an approved I-140 petition has a potential advantage for those who seek to change employers or jobs, but it is not as big of an advantage as having AC21 portability.]
©MurthyDotCom
Transfer of the Earlier Priority Date : EB3 to New EB2
©MurthyDotCom
The ability to transfer priority dates from an earlier, approved, I-140 to a later-filed I-140 could provide an alternative for job mobility, both within the current employer's organization or with a new employer. This would be helpful for those who want to make a change but are not eligible to file the I-485 application because of retrogression. It also could help people who are eligible to change from an EB3 classification to EB2. One would be eligible to request a transfer of the priority date from the earlier-filed EB3 petition to a new EB2 petition once the I-140 is approved. The new EB2 petition would need to be based upon a new LC for a position requiring the EB2 level of education and/or experience. (Over time, many people with EB3 cases have become eligible for EB2 cases due to increased experience and/or education, and promotions.)
©MurthyDotCom
This strategy potentially could shave off a few years in the queue for available immigrant visa numbers. This may be particularly appealing to those who had EB3 labor certifications filed on their behalf long ago and have had their cases pending while they have gained advanced degrees, acquired several more years of experience, and/or are offered jobs at higher levels. Keep in mind, though, that this involves filing a whole new LC under the PERM system for a new job opportunity and that the employer must actually require the additional degree and/or experience for all persons holding that job classification in order for the new case to be filed as EB2.

But this does seem to suggest that he needs to find a dissimilar job either with his current employer or somewhere else. :confused: :confused:
 
This still does not answer (or did I not get it?) as to when you can port the earlier priority date -
a. when you apply for the new 140 (you submit the earlier approved 140 at the time of applying for your Eb2 140, and your Eb2 comes approved with the earler PD), or
b. after it is approved with a later date? (You get a EB2 140 approved with a later PD, and then submit the earlier approved 140, they give you a updated EB2 with earlier PD; sounds too complicated).

Re your question on "dissimilar" jobs, I don't think that is an issue. It just means that the PERM LC should have a job description that requires "MS + x or BS + y years" (x >= 0, y >= 5). Since your hubby has the required education & experience, he should be fine.

elaine1518 said:
I have found some information on Murphy Law that talks about exactly my husband's situation:

Approved I-140s and Job Mobility - Transfer of the Earlier Priority Date
©MurthyDotCom
The priority date from an approved, valid I-140 petition may be transferred to a new I-140 petition. This is another situation in which premium processing would prove advantageous. Since I-140 premium processing would allow for faster approval of the I-140 petition, the priority date potentially then would be available for transfer to a later-filed employment-based green card case, at the I-140 stage. This later-filed I-140 petition could be with the same employer (for a different job) or with a new employer in a new position.
©MurthyDotCom
[Editor's Note : The provisions for transfer of the earlier priority date are unrelated to AC21 portability. Having solely an approved I-140 petition (without an I-485 that has been pending for 180 days) does not give the individual eligibility for AC21 green card portability. We have received some questions about the job mobility referred to in the caption of this subsection, and want to be absolutely clear that we are not referring to AC21 portability. Changing jobs after approval of an I-140 where an I-485 has not been filed means that the green card case will have to start over, right from the labor certification (LC) stage in LC cases. However, it is possible to request to retain the priority date in a later I-140 petition, once there is an approved I-140 petition in an earlier case with a different employer or even for a different position with the same employer. Therefore, an approved I-140 petition has a potential advantage for those who seek to change employers or jobs, but it is not as big of an advantage as having AC21 portability.]
©MurthyDotCom
Transfer of the Earlier Priority Date : EB3 to New EB2
©MurthyDotCom
The ability to transfer priority dates from an earlier, approved, I-140 to a later-filed I-140 could provide an alternative for job mobility, both within the current employer's organization or with a new employer. This would be helpful for those who want to make a change but are not eligible to file the I-485 application because of retrogression. It also could help people who are eligible to change from an EB3 classification to EB2. One would be eligible to request a transfer of the priority date from the earlier-filed EB3 petition to a new EB2 petition once the I-140 is approved. The new EB2 petition would need to be based upon a new LC for a position requiring the EB2 level of education and/or experience. (Over time, many people with EB3 cases have become eligible for EB2 cases due to increased experience and/or education, and promotions.)
©MurthyDotCom
This strategy potentially could shave off a few years in the queue for available immigrant visa numbers. This may be particularly appealing to those who had EB3 labor certifications filed on their behalf long ago and have had their cases pending while they have gained advanced degrees, acquired several more years of experience, and/or are offered jobs at higher levels. Keep in mind, though, that this involves filing a whole new LC under the PERM system for a new job opportunity and that the employer must actually require the additional degree and/or experience for all persons holding that job classification in order for the new case to be filed as EB2.

But this does seem to suggest that he needs to find a dissimilar job either with his current employer or somewhere else. :confused: :confused:
Click to expand...
 
GotGC?? said:
This still does not answer (or did I not get it?) as to when you can port the earlier priority date -
a. when you apply for the new 140 (you submit the earlier approved 140 at the time of applying for your Eb2 140, and your Eb2 comes approved with the earler PD), or
b. after it is approved with a later date? (You get a EB2 140 approved with a later PD, and then submit the earlier approved 140, they give you a updated EB2 with earlier PD; sounds too complicated).

Re your question on "dissimilar" jobs, I don't think that is an issue. It just means that the PERM LC should have a job description that requires "MS + x or BS + y years" (x >= 0, y >= 5). Since your hubby has the required education & experience, he should be fine.
Click to expand...

Yeah, we are checking with a third attorney on the "when" question now :D I'll report back on what she says. It does sound like scenario A is more likely, based on this sentence "One would be eligible to request a transfer of the priority date from the earlier-filed EB3 petition to a new EB2 petition once the I-140 is approved". And thanks for the answer on my 2nd Q.
 
Checked w/3rd lawyer and she suggests that we try filing the 140 on EB2 anyway, because this position is a senior position and it pays senior salary. If 140 gets rejected under EB2, we can refile it under EB3. It's risky but probably worth trying. What do you guys think?

She also said the PD port-over is not applicable to our case. It can be done before the first LCA gets approved (if the person changes job), not after. I'm not sure I would trust her on that. Guess I'll have to talk to a 4th lawyer!
 
An attemp at a EB2 with the currentn LC might be worth it - may be because of the Masters requirement it might get thru? Also, if youfile Premium, u'll get the decision in a few days and, God forbid, if it doesn't go thru, you wouldn't have 'wasted' mush time and can refile in PERM.

But I'd still be wary of this 4th attorney who doesn't seem to know what he/she is talking about. What exactly is this option of "porting the PD before a LC is approved"? If that would have been the case, none of the folks would have stagnated in BECs for years!!

elaine1518 said:
Checked w/3rd lawyer and she suggests that we try filing the 140 on EB2 anyway, because this position is a senior position and it pays senior salary. If 140 gets rejected under EB2, we can refile it under EB3. It's risky but probably worth trying. What do you guys think?

She also said the PD port-over is not applicable to our case. It can be done before the first LCA gets approved (if the person changes job), not after. I'm not sure I would trust her on that. Guess I'll have to talk to a 4th lawyer!
Click to expand...
 
how it is eb3?

if you have masters+5 years exp, lca requires MS+2 or BS+5, you are eligible for MS+2 = EB2, I am surprised how it is considered as EB3? Can Some explain this?
 
believe or not, my husband is in the exactly boat. we were forced to file eb3. The concerns was if you were rejected on Eb2 based on your labor( which is filed exactly same as my husband, ms+2 or bs+3), you might be rejected at all instead of downgrade to eb3. There might be long journey to answer all the rfis and back forth. Anyway. we filed as eb3 as two attorneis recommended and refiled an eb-2 under perm. so we can transfer the pd. hope this help. we are yet waiting for perm to go through.
 
vinsa2006 said:
if you have masters+5 years exp, lca requires MS+2 or BS+5, you are eligible for MS+2 = EB2, I am surprised how it is considered as EB3? Can Some explain this?
Click to expand...

LCA requires MS+2 or BS+3. EB2's normal criteria is MS or BS+5. That's why we are also confused whether it's EB2 or 3
 
nonogc said:
believe or not, my husband is in the exactly boat. we were forced to file eb3. The concerns was if you were rejected on Eb2 based on your labor( which is filed exactly same as my husband, ms+2 or bs+3), you might be rejected at all instead of downgrade to eb3. There might be long journey to answer all the rfis and back forth. Anyway. we filed as eb3 as two attorneis recommended and refiled an eb-2 under perm. so we can transfer the pd. hope this help. we are yet waiting for perm to go through.
Click to expand...

Thanks for sharing, nonogc. One lawyer told us exactly the same: Nebraska Center doesn't give you a chance to downgrade to EB3 if EB2 doesn't make sense to them. They would reject the case. But do you think we may be able to refile 140 under EB3, so that we wouldn't lose the PD with the approved LCA?
 
GotGC?? said:
An attemp at a EB2 with the currentn LC might be worth it - may be because of the Masters requirement it might get thru? Also, if youfile Premium, u'll get the decision in a few days and, God forbid, if it doesn't go thru, you wouldn't have 'wasted' mush time and can refile in PERM.

But I'd still be wary of this 4th attorney who doesn't seem to know what he/she is talking about. What exactly is this option of "porting the PD before a LC is approved"? If that would have been the case, none of the folks would have stagnated in BECs for years!!
Click to expand...

Again, would we be able to maintain the original PD if EB2 140 gets rejected?

The case that attorney cited was actually an exception. Her client changed job while waiting for LCA. She got an inquiry from Labor Dept asking for additional information on the case, so she changed the case info to the new employer and responded, and it got approved. That's what she meant by "porting PD before LCA approval". But i believe this is a very rare case.
 
RIR EB3 got approved. Can I proceed with both I-140 and a fresh PERM EB2?

I am in a very similar situation. My employer filed an RIR LCA (in EB3) in Feb 2005. About 2 months ago (around Oct 2006), I had asked the lawyers to re-file using PERM using EB2. The EB2 is for a slightly different position with EB2 level of education and experience. I did possess the required education/experience before joining this employer.

The lawyers were preparing my application for PERM and were expecting to file it sometime Jan/Feb 2007.

And yesterday(12/09/2006), my RIR EB3 LCA got approved!

I now want to know if it will be advantageous if I file I-140 on the old RIR approval first, and after it gets approved (hopefully!), THEN file the PERM. I am guessing that in such a case, I will be able to use the earlier PD from the RIR. Is that true?

I want to be able to use both the earlier PD that comes with RIR approval, as well as the EB2 status that comes with the PERM application. Can that be done?
 
EB3 to EB2 when employewr paid for Master's degree?

Here is my story - My LC was filed by the employer in EB2 (Bachelor's degree + 9 years work experience) but got approved as EB3. The lawyer's argument for LC approved in EB3 was that the bachelor's degree was not in the same faculty/field as the job requirement hence the EB3 approval.

In that period employer paid for Masters degree (completed MS in Aug 2005 more than 1 and half years ago) - now can I apply a PERM LC in EB2 + progressive experience in the job even if my employer paid for Master's degree education? The MS degree is in the same field as the job and all experience is in the same field as the job.

Case details:
PD - Nov 2001
I-140 approved
I-485 pending in namecheck
2nd EAD approved in Nov 2006.

Any reply will be highly appreciated.

Thanks and Good Luck!
 
Employer sponsoring/paying for Masters has no relevance here. What is relevant is that you have masters.
 
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