Pl help !! Lawyer says NO to have old EB3 with new EB2

[lost_angeles]

Hi,
I have a EB3 labor appln pending with priority date of DEC 2004. I now want to file for a new EB2 labor appln under PERM. I have read a lot of people file for a new PERM EB2 application while retaining their old EB3 applications.

When I told about this to my company's lawyer, he said we cannot do this. Since it is the same position/job, we can only have one outstanding labor application at a time.

Please help with any advise on how to go about this. Is my lawyer correct?

Thanks.

 

[AGC4ME]

It appears that he hasn't changed any jobs or atleast he hasn't stated that he moved to a new job. It's still the old job. So the lawyer is right. OP, can ur company promote u to a new job ?

 

[lost_angeles]

Yes, I am not changing jobs, but my job title will change from 'Programmer' to 'Analyst'. In a sense, I will get promoted. But the old 'Programmer' position will not exist in the organization anymore. Pl advise if I can save my old EB3 labor application.

 

[nishokie]

your lawyer is correct in this case because it is the same job position. i am going thru the same process right now....even though my new position is not the same my lawyer is not guaranteeing transfer of PD.

Hi,
I have a EB3 labor appln pending with priority date of DEC 2004. I now want to file for a new EB2 labor appln under PERM. I have read a lot of people file for a new PERM EB2 application while retaining their old EB3 applications.

When I told about this to my company's lawyer, he said we cannot do this. Since it is the same position/job, we can only have one outstanding labor application at a time.

Please help with any advise on how to go about this. Is my lawyer correct?

Thanks.

 

[SAI_GIVE_GC2005]

Hi,
I have a EB3 labor appln pending with priority date of DEC 2004. I now want to file for a new EB2 labor appln under PERM. I have read a lot of people file for a new PERM EB2 application while retaining their old EB3 applications.

When I told about this to my company's lawyer, he said we cannot do this. Since it is the same position/job, we can only have one outstanding labor application at a time.

Please help with any advise on how to go about this. Is my lawyer correct?

Thanks.

Hi Lost_Angeles

I think it is not possible to expedite the priority date. But if you have applied EB3 in regular or RIR earlier. But willing to file the new EB2 under PERM. I think you can do that. I don't remember but I think that you cannot have two process under PERM itself. Also if your attorney accepts to file EB2 under PERM, why do you want to transfer the priority date. It is going to be only 2 years variation. If he accepts to do second process, keep the second under EB2 with new priority date. In such case you have two different process one under EB3 and EB2. So whichever priority date moves faster, you can file next step accordingly. Check with Rajiv S Khanna's office, they will guide properly.

Good Luck

 

[AGC4ME]

There are many people who are currently in the process of doing a labor in perm in eb2 while at the same time having backlog eb3 labor with same company.

Others have approved I-140 in eb3 with same company and are doing eb2 labor in perm and transferringn priority date.

It is tried and tested.

Not to accuse other posters; but lately, i've noticed that any time someone is exploring an avenue that will get them the greencard faster which may not be available to other posters, then other posters slant their advice which would be more favorable to their own position.

UnitedNations, is it for the same job ? No wonder why USCIS pending applications are so high. USCIS is going to think that this approved EB3 I140 is now going to file 485 but little does it know that he has taken another path to freedom !!!

 

[saras76]

Loopholes ..

UnitedNations, is it for the same job ? No wonder why USCIS pending applications are so high. USCIS is going to think that this approved EB3 I140 is now going to file 485 but little does it know that he has taken another path to freedom !!!

AGC4ME,

Every flawed system has loopholes and people take advantage of them. I am not aginst taking advantage of loop holes but the moral dilemma in this case is that taking advantage of these loopholes actually "stomps" on people who have applied years ago and are suffering. Labor substitution is a classic example of this. There are several other ways. We cannot hold things against people who exploit loopholes because ultimately we are also free to do this .. the system is to blame for this mess ... the DOS and USCIS know the flaws and turn a blind eye to it .. they end up punishing the people they should be rewarding ..

regards,

saras

 

[Dallas03096]

Wow

I saw a person get greencard approved and then approximately 5 days later, the h-1 extension got approved. This person had three approved I-140's with three different companies. He received a three year extension because the 140 used to request the extension was retrogressed.

Wow! 3 I-140s with three different companies and H1 extension! That is some backup plan!

 

[nishokie]

Key thing is that you cannot use the experience gained with employer to satisfy the job requirement. Therefore, you can only use the experience before joining current sponsor.

how sure are you about this rule? I haven't seen it anywhere. I am in the process of changing from Eb3 to EB2 with the same company. The new job is a promotion and requires 5 years experience and a Masters both. So are you saying that I don't qualify for EB2 because i gained that 5 years experience from the same employer.
Let me know your thoughts?

Computer system analyst, software engineer, it manager and different variations of those titles essentially are the same. Those three positions are the general ones everyone applies a labor for.

If a company pegs analyst as bachelors plus two and software engineer as bachelors plus five or it manager as bachelors plus five; it is very easy to have backlog labor in one and perm labor in another.

Key thing is that you cannot use the experience gained with employer to satisfy the job requirement. Therefore, you can only use the experience before joining current sponsor.

The way I look at it is that I have 16 years of experience. I would probably be qualified for at least 10 different positions that I have gained through my job experience.

Labor requirements are different then 140 requirement. Labor, you cannot use experience, education gained with sponsoring employer to meet job requirement but uscis doesn't care as long as you had it before the priority date. Also, DOL generally wants a person to meet both requirements of a labor (if there are two requirements) but uscis only cares for you to meet one of the two.

For example if you have a masters degree that you obtained in 2003 and labor requires bachelors plus five or masters. DOL would expect you to show five years of experience before you joined the company and you have masters degree (the five years of experience could be before, during and after bachelors degree). Therefore, to meet the bachelors requirement, you can list experience you gained before you got your bachelors. This will get the labor approved.

However, in EB2 for I-140 purposes, you can only use experience gained after you received bachelors. However, since you have masters, you only need to meet that requirement before the priority date for I-140 purposes.

It is a little twisted decision tree, to get the labor approved and the I-140 approved.

 

[chanduv23]

My case
Worked for company X 2001 to 2003 - Layed off - labor filed and approved but company just keeps it or substitutes it.

Worked for company Y 2003 to 2005 - layed off - labor filed and pending in BEC - company may use it or not (they made me pay for it though)

Working for company Z now - labor filed and approved in PERM filed 140.

So acc.. to USCIS 3 visas are counted in my case and then 1 for my spouse. Just imagine if we dig through the real mine, we might see labors getting filed up or substituted while we keep losing PDs, thats the system.