O*NET education & Experience

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kadavath1967

Registered Users (C)
Hello All,

I am planning to file LC to qualify under EB2. Since my salary is less than the required salary for EB2, (I don't want to go for Eb3 and wait 3-4 years) my lawyer says that he found another survey that says a lesser salary (equal to my current salary) that he could make EDD accept. The only problem according to him is that this survey requires O*NET education & Expericnce. My questions are:

1) What is this O*NET really means?
2) What is Job Zone Four?
3) What is SVP Range (7.0 to < 8.0) means?

I would highly appreciate your inputs into this.

Thanks a lot.
 
Thanks

I want to know how DOL decides on EB2 or EB3. I am getting these really confused about this. Can anyone suggest a good & resonable lawyer in SF?

Thanks a lot.
 
Onet

The DOl does not decide EB2 or EB3, your employer does through your job description and job title. The DOL confirms that the requirements matches the correct ONET code for EB2 or EB3. For example, a regular Engineer or Computer Programmer is EB3. An engineering manager is EB2. EB3 typically has lower prevailing wage than EB2, so that's another consideration to keep in mind in terms of what your employer is willing to pay you. If you try to sneak in a master degree or 5 years of experience for a regular Engineer or Computer Programmer job in the EB3 category, your employer has to prove business necessity which will likely be denied by the DOL.
 
question for bjorn

Bjorn - I have a question for you. I do not face retrogression issue (not from India, etc). Prior to joining my company, I had BSCS + 11.5 months (not years) of experience. After which I got my MSCS while working.
In order to use MS for my LC, I have to show that my current role is NOT "substantially comparable". (a "not substantially comparable" position means a position requiring performance of the same job duties less than 50% of the time.). I got promoted once, so I can try to do that (show that I am doing different activities as opposed to when I got hired - might be a challenge, maybe even cause audit?), but I am trying to figure out what will make my application easier.

If I use BS, my lawyer is saying I will have problems with proving that qualified US worker cannot be found.

1. My previous and current jobs are in Engineering. Can they be proved substantially different?

2. Which is riskier - using BS (and having recruitment problems), or using MS(and having to prove substantially different jobs)? Which battle would you pick?

3. Have you ever had to prove substantial difference with 2 Engineering jobs? In other words, if I was Engineer I, then I become Engineer III, can that be proved substantially different?

4. If I went with MS, at what point will the issue of substantially different job come up - at LC, 140, or 485? All?

5. For software engineer, DOL says min job reqmts is BS. If you have MS, that does not exceed SVP, but does it automatically exceed the "normal requirements" for that position?
 
Thanks a lot Bjorn,

I am sorry for asking more questions....

So you mean to say we (as applicants) has no option at all to select EB2 or EB3?

I am not an engineer, I am an Accountant. When I checked the Accountant and Auditor wages in California (SF Bay Area) it is showing 81,370 the highest salary. Does this mean that I have to earn this salary to go to EB2?

There are other 3 levels of salary below this 81K. If I earn salary matching those three lower levels , will DOL ask me to file under EB3?

I contacted a lawyer and he says that I should earn the $81,370 salary when I file for LC, otherwise they will reject it. I found a different opinion saying that the employer need to pay the $81K only after getting GC. Which is true ?

Are these lawyers try to make money by taking advantage of my ignorance on this matter? Can someone suggest a dependable lawyer in SF?

Thanks a lot.
 
hk196712 said:
Thanks a lot Bjorn,

I am sorry for asking more questions....

So you mean to say we (as applicants) has no option at all to select EB2 or EB3?

I am not an engineer, I am an Accountant. When I checked the Accountant and Auditor wages in California (SF Bay Area) it is showing 81,370 the highest salary. Does this mean that I have to earn this salary to go to EB2?

There are other 3 levels of salary below this 81K. If I earn salary matching those three lower levels , will DOL ask me to file under EB3?

I contacted a lawyer and he says that I should earn the $81,370 salary when I file for LC, otherwise they will reject it. I found a different opinion saying that the employer need to pay the $81K only after getting GC. Which is true ?

Are these lawyers try to make money by taking advantage of my ignorance on this matter? Can someone suggest a dependable lawyer in SF?

Thanks a lot.
Click to expand...

You cannot choose EB2 or EB3, your employer does that based on the job description and job title and how those fit into ONET. I just checked, an a typical accountant is EB3, meaning that your employer has to prove business necessity for EB2 such as a master's degree, which is very difficuly to get approved. On the other hand, accountants need several years of experience to be qualified, so your employer can require 3-4 years of experience. Your lawyers are probably correct. Their information may differ, but that may be because of their understanding of your job. The required education and experience will determie the prevailing wage and the wage level. Check out the below websites to see what the DOL and SWA officially use to determine your prevailing wage.

http://www.flcdatacenter.com/skill.aspx
 
Thank you Bjorn,

I think I found the place were I found the information about timing of salary. I found it on a statement of AILA. See this link

http://www.immitousa.com/20041227PERM.pdf

What do you think now. Do you know any good lawyer in SF area?

Thank a lot
 
wildscenebob said:
Bjorn - I have a question for you. I do not face retrogression issue (not from India, etc). Prior to joining my company, I had BSCS + 11.5 months (not years) of experience. After which I got my MSCS while working.
In order to use MS for my LC, I have to show that my current role is NOT "substantially comparable". (a "not substantially comparable" position means a position requiring performance of the same job duties less than 50% of the time.). I got promoted once, so I can try to do that (show that I am doing different activities as opposed to when I got hired - might be a challenge, maybe even cause audit?), but I am trying to figure out what will make my application easier.

If I use BS, my lawyer is saying I will have problems with proving that qualified US worker cannot be found.

1. My previous and current jobs are in Engineering. Can they be proved substantially different?

2. Which is riskier - using BS (and having recruitment problems), or using MS(and having to prove substantially different jobs)? Which battle would you pick?

3. Have you ever had to prove substantial difference with 2 Engineering jobs? In other words, if I was Engineer I, then I become Engineer III, can that be proved substantially different?

4. If I went with MS, at what point will the issue of substantially different job come up - at LC, 140, or 485? All?

5. For software engineer, DOL says min job reqmts is BS. If you have MS, that does not exceed SVP, but does it automatically exceed the "normal requirements" for that position?
Click to expand...

Your employer controls the recruitment, the DOL controls the application. I'd pick the BA and recruit for that to check out the labor market first. If that does not work out, perhaps try EB2 and require more and try to prove business necessity. The issue of substantially different job will come up during LC (PERM). Substantially different means that the second engineering job has to be at least 50% different than the first engineering job. It's not just a matter of proving substantially different jobs, but unless you are an engineering manager, you have to prove business necessity to require a masters degree, something the DOL likely will deny as according to ONET an engineer normally requires only a BA. Any job that ONET claim reuires only a BA will have to be proven with business necessity if you require a masters. Plus, the the prevailing wage is higher, meaning you employer has to agree to pay more. If so, I'd talk to my amployer to see if I could get labeled as a project engineer or such, which is EB2 according to ONET, meaning an MS an 5+ years experience are usually required, so no busines s necessity needs to be proven.
 
Bjorn - thanks a lot for your response! problem is my lawyer is not willing to try bachelors, and if it doesn't work, try masters. he wants to be by the book, and wants to apply for the exact actual requirements. So if I say my requirements are Bachelors, he will use that, and won't try masters later and vice versa. if bachelors gets rejected, i am in trouble, and if masters gets audited, i am in trouble.

so I have to decide whether I should go with BS (and face the problem of proving to INS that there are no qualified US workers - which could be painful), or use MS (and face biz necessity, substantially different job issues).
Plus, lawyer also said that if we advertise for BS and find qualified workers, we cant proceed with the application - he seems VERY by the book :-(

What to do????
 
CHANGE THE LAWYER.!



wildscenebob said:
Bjorn - thanks a lot for your response! problem is my lawyer is not willing to try bachelors, and if it doesn't work, try masters. he wants to be by the book, and wants to apply for the exact actual requirements. So if I say my requirements are Bachelors, he will use that, and won't try masters later and vice versa. if bachelors gets rejected, i am in trouble, and if masters gets audited, i am in trouble.

so I have to decide whether I should go with BS (and face the problem of proving to INS that there are no qualified US workers - which could be painful), or use MS (and face biz necessity, substantially different job issues).
Plus, lawyer also said that if we advertise for BS and find qualified workers, we cant proceed with the application - he seems VERY by the book :-(

What to do????
Click to expand...
 
What to do...

First, why do you really need a lawyer in the first place? Your employer can get the PW, recruit, write the recruitment report, and file the PERM application. What used to be extremely complex LC procedure is now very simple. With PERM, the role of lawyers has changed dramatically. Why can't your HR get the PW, recruit, write the recruitment report, and file the application? HR should already know how to recruit and write a recruitment report, and getting the PW and file PERM is certainly not rocket science. If I were you, I'd dump my lawyer and ask the employer to recruit for the position with a BA to see what happens. Do a recruitment test to check out the labor market. If if works in your favor, use it for PERM, if not, learn from it and change the recruitment strategy. Also, keep in mind, the recruitment is valid for 180 days, so if a couple of qualified US candidates apply, there is nowhere it says that you cannot wait 5 months before contacting them. By then, perhaps these candidates are no longer interested and will turn down an interview, meaning they can be ruled out. As long as you file PERM within 180 days of ending the recruitment, there is no date you have to file PERM immediately followng the 30 days waiting period, as long as you do it within 30-180 days following the recruitment. Take advantage of the 180 days... If you have a valid H-1B or other visa, the employer does NOT have to replace you, but can turn down all applicatns and keep you. The,n, try recruiting again with some new requirements to weed out the candidate pool some more by learning from the first recruitment experience. It says nowhere that you cannot recruit for the same position several times.
 
bjorn said:
First, why do you really need a lawyer in the first place? Your employer can get the PW, recruit, write the recruitment report, and file the PERM application. What used to be extremely complex LC procedure is now very simple. With PERM, the role of lawyers has changed dramatically. Why can't your HR get the PW, recruit, write the recruitment report, and file the application? HR should already know how to recruit and write a recruitment report, and getting the PW and file PERM is certainly not rocket science. If I were you, I'd dump my lawyer and ask the employer to recruit for the position with a BA to see what happens. Do a recruitment test to check out the labor market. If if works in your favor, use it for PERM, if not, learn from it and change the recruitment strategy. Also, keep in mind, the recruitment is valid for 180 days, so if a couple of qualified US candidates apply, there is nowhere it says that you cannot wait 5 months before contacting them. By then, perhaps these candidates are no longer interested and will turn down an interview, meaning they can be ruled out. As long as you file PERM within 180 days of ending the recruitment, there is no date you have to file PERM immediately followng the 30 days waiting period, as long as you do it within 30-180 days following the recruitment. Take advantage of the 180 days... If you have a valid H-1B or other visa, the employer does NOT have to replace you, but can turn down all applicatns and keep you. The,n, try recruiting again with some new requirements to weed out the candidate pool some more by learning from the first recruitment experience. It says nowhere that you cannot recruit for the same position several times.
Click to expand...
bjorn, dude, thanks a lot. that's some great advice.
 
What to do

The lawyer is paid by the company to look aftre your best interest. Any gray area like what I explained he should be willing to explore as long as no laws are being violated. The lawyer should know that you can use the 180 days to recruit in order to work the system to your advantage. If your lawer is not willing to take advantage of the gray areas of PERM, he is not working in your best interest. If you have a decent, boss, talk to him and bring this up so the boss can put some pressure on the lawyer. If not, perhaps change employer... If you feel like your'e gonna struggle getting PERM approved through your current employer, perhaps changing employer is the only way to go.
 
Lawyer

The lawyer is paid by the company to look aftre your best interest. Any gray area like what I explained earlier he should be willing to explore as long as no laws are being violated. The lawyer should know that you can use the 180 days to recruit in order to work the system to your advantage. If your lawer is not willing to take advantage of the gray areas of PERM, he is not working in your best interest. If you have a decent, boss, talk to him and bring this up so the boss can put some pressure on the lawyer. If not, perhaps change employer... If you feel like your'e gonna struggle getting PERM approved through your current employer, perhaps changing employer is the only way to go.
 
bjorn thanks! so you think i should first try bachelors, and see if that goes through recruiting, before I try masters, right?
 
Totally, Your employer controls the recruitment. The DOL controls the filed PERM in terms of EB2 vs EB# determination, business necessity, etc. Keep the ball in your court through recruitment by recruiting once with a BA. BA is EB3 and no business necessity to prove MA, meaning less likelihood of denial due to not claiming business necessity to try to achieve EB2. Your employer has all the right in the world to recruit fro one position and then later for a similar one with a couple of different requirements. Keep in mind that you need to redo the SWA, newspaper, etc, but this way you can disregard the firt recruitment and use the second one if it proves that there were too many qualified candidates for the first one so you have to go for the MA requirement.
 
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