PERM EB2 or EB3? MS+2yrs EB2. Any possibility of Audit ?

S

stewie

New Member
Hi all, I'm at a stage where my fingers are crossed and hope the gurus here might help me with my PERM application

I have a Master + 2yrs of experience and getting ready to apply for PERM under EB2. To my surprise my employer is insisting me to apply under EB3 category instead of EB2 (which I'm (may) be eligible for). He claims that the DOL is in the process of auditing almost every EB2 case these days and he fears that my case would be audited too. I was strong in applying under EB2 until I heard this news and now have my fingers crossed and do not know what to do. Could any one throw some light in to this matter? Is it true that there is a possiblity of my case sent to audit. ? Please help me understand this and would really appreciate if anyone can throw some light into this. Thanks in advance !!!
 
first, EB2 or 3 depends on whether the employer requires MS degree for this position.
If so, then the possibility of audit should not worry you. If you have followed up all the requirements to prepare your perm application, if audited, you just have to provide all the information the ask (nothing more than what you have already completed to prepare the application).
That said, I do not know if EB2 by itself triggers audit.
Good luck.

stewie said:
Hi all, I'm at a stage where my fingers are crossed and hope the gurus here might help me with my PERM application

I have a Master + 2yrs of experience and getting ready to apply for PERM under EB2. To my surprise my employer is insisting me to apply under EB3 category instead of EB2 (which I'm (may) be eligible for). He claims that the DOL is in the process of auditing almost every EB2 case these days and he fears that my case would be audited too. I was strong in applying under EB2 until I heard this news and now have my fingers crossed and do not know what to do. Could any one throw some light in to this matter? Is it true that there is a possiblity of my case sent to audit. ? Please help me understand this and would really appreciate if anyone can throw some light into this. Thanks in advance !!!
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The DOL issues audits at random, as well as for positions that do not normally (according to SVP standards) require a Master's degree. So, you could be subjected to a random audit or a targeted audit. And yes, for 80% of the cases for which I am filing EB2 presently, we are receiving audits - especially if they are first time filings for the company. The other gentleman who posted in this section is correct as well - why is an audit so worrysome? There could be another reason for not applying EB2 such as ability to pay or the possibility of a very high salary associated with being an EB2. Or, maybe your position does not warrant EB2 and that's why. But yes, when your employer says EB2's are being audited frequently, he is correct as far as my experience recently goes.
 
st4rguitar said:
There could be another reason for not applying EB2 such as ability to pay or the possibility of a very high salary associated with being an EB2.
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Do the check ability to pay at PERM stage? If employer states that he's paying more than the prevailing wages, is there a concern?
 
I have not heard of the ability to pay issue coming up at the PERM LC level. It's not really under the DOL's jurisdiction to ask for company financial documentation unless (assumption) they were to ask for such to prove the company is bona fide, and normally they'd as for this information when the employer first signs up for the ETA system.

It shouldn't be a problem if the employer pays the person more than the prevailing wage - you only have to meet the minimum as stated on the PW. However, it doesn't look good if you're making $100K and the PW is $35K - it has to be in reason, of course!

 
st4rguitar said:
However, it doesn't look good if you're making $100K and the PW is $35K - it has to be in reason, of course!
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Why would this be problem if you're making a lot more than PW, i.e. 4-5 times the PW. And then this is relative. If PW is $30K, 4 times would be $120K. And if PW is $100K then 4 times would be $400K, a whopping $300K difference.

And what are the chances PW is off.

If you're really paid that much more the PW and your fellow employees with same qualifications are also paid the same, what do you have to do then. Of course not pay cut, employer will be thrilled if you do that :)

Would this situation would cause automatic "audit".

Finally, do you know how long Atlanta center is taking these days? Are they still handling cases at random not "first come first serve".
 
Disadvantage of EB3?

Thanks BB ..

I am facing a similar situation.. I am MS with 4+ years experience, and my lawyer is advising to go for EB3..I was told that all EB2 cases go to audit, and that a very high salary was needed to go thru smoothly...

Will it not be ok as long as salary is same as prevailing wage? I had heard that the most common reason for audit was for the BUsiness Necessity ..

What will be the difference between filing under EB2 or EB3? Will EB3 require much longer times..Are there any other disadvantages.. I had heard that an EB3 case would need at least 2 or 3 years more..

Its a bit difficult to insist on Eb2 when the company and lawyer both advise against it, but theoretically I do not see the problem.

Appreciate any thoughts you may have on this.

thanks..
 
You're not considering the main reason for filing the application. The purpose of doing the PERM LC is that the company cannot locate a suitable US worker to fill the position. If the company is advertising a position for which the salary is only $35,000 (the PW), yet you are filling the position and making $100,000, that isn't really advertising the position fully to the US workers... i.e., a qualified US worker could see it and say "oh it's only $35K, i won't apply for it" when the position is really warranting $100K and not $35K, and they would apply for it if that salary was offered, and the company would have to interview that candidate and potentially hire him/her. The company can get in huggggeeee trouble if they reject US workers for the position for which they'd actually be fully qualified for, including revoking the LC and barring the company for filing for a certain number of years, and/or supervised recruitment.

I don't know what you mean by the PW being "off." The state determines what the PW is for the position going off of specific guides. They've been coming back with ridiculous SOC/O*Net codes recently, however, like for a Software Engineer they came back as an Electrical Engineer, No computers - one recently came back as a Mathematician which was supposed to be a Programmer... lovely.

There is nowhere on the PERM LC that lists what you are making, so the DOL has no way of knowing what you are making, so no it can't trigger an audit on the PERM LC.

Atlanta says "first in, first out," but it's Atlanta. We have cases approved in a few week while others remain pending for a few months.. it's become their standard in my opinion.

Where are you in the GC process anyway? It seems like you've been posting a while just to be in the first stage asking these questions.


m_img said:
Why would this be problem if you're making a lot more than PW, i.e. 4-5 times the PW. And then this is relative. If PW is $30K, 4 times would be $120K. And if PW is $100K then 4 times would be $400K, a whopping $300K difference.

And what are the chances PW is off.

If you're really paid that much more the PW and your fellow employees with same qualifications are also paid the same, what do you have to do then. Of course not pay cut, employer will be thrilled if you do that :)

Would this situation would cause automatic "audit".

Finally, do you know how long Atlanta center is taking these days? Are they still handling cases at random not "first come first serve".
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How many years is your Bachelor's degree and how many years is your Master's degree? The most common reason for audit is to document business necessity for an EB2 cases, yes, or, just a random one. Yes, there is generally a longer wait for EB3 cases than EB2 cases, although the current visa bulletin shows that EB2's from India are unavailable. Remember: the position is not based on your credentials alone!!! It is based on the requirements for the position, the high salary, whether you qualify, whether the company wants to support it, etc. In essence, if the company doesn't want to apply under EB2 for you, they don't have to.

pb2008 said:
Thanks BB ..

I am facing a similar situation.. I am MS with 4+ years experience, and my lawyer is advising to go for EB3..I was told that all EB2 cases go to audit, and that a very high salary was needed to go thru smoothly...

Will it not be ok as long as salary is same as prevailing wage? I had heard that the most common reason for audit was for the BUsiness Necessity ..

What will be the difference between filing under EB2 or EB3? Will EB3 require much longer times..Are there any other disadvantages.. I had heard that an EB3 case would need at least 2 or 3 years more..

Its a bit difficult to insist on Eb2 when the company and lawyer both advise against it, but theoretically I do not see the problem.

Appreciate any thoughts you may have on this.

thanks..
Click to expand...
 
I have my labour cert app started last week and my lawyer called yesterday to withdraw and start the hiring process all over because he wants to change my job title. It appears we wasted all the time before and we're back to square one. However, his explanation is trying to avoid audit.

Once your app is being audit, you're in a dark hole. Nobody knows how long it'll take and if it ends up reject or denied. It's better to be well prepared than sorry.

EB3 is taking a long time, however, it's safer. If your lawyer has no confidence to submit you in EB2, you'll have a long thinking to do. If it is me, I'll take his advise and I'm sure my lawyer knows better than me. In my case, I did withdraw my labour cert app and restart the advertising all over for a new job title.
 
wfchan said:
Once your app is being audit, you're in a dark hole. Nobody knows how long it'll take and if it ends up reject or denied. It's better to be well prepared than sorry.
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Audits are not black holes nor are they the end of the world as long as you have a good attorney and responsive company who are willing to work together to prepare the audit documentation. We've received many audits and have responded to them successfully (knock on wood.)
 
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