Prewailing Wage : EB2 vs EB3

N

Nabeel1

Registered Users (C)
Gurus,

I need some advice. I got my EB3 I-140 Priority date for Nov 15, 2005. I moved a newer job at the same company with different responsibilites and became the lead. They didnt bump up my salary or anything. Lateral move. I have full 5 years experience with the same company. Now I want to do EB2 since Rest of World category is current. My manager is ok and wants to do it, but the lawyer is making my life miserable. Lawyers says that my prevailing wage is way too low (I already know that and the company is taking advantage, they know I cant move anywhere due to not having g/c). Lawyer said I am not even in the ballpark range for $$. I believe I am about 15 K lower than average coworker. What do you think I should do ?

My 6th year H1-B expires on Dec 08. So I have only 18 months until I renew it again.
1. Should I look for newer jobs ? Try EB2 different company ?
2. Or push my manager to choose the occupational code that has lower salaries ?
3. Or wait for EB 3 to clear up for ROW (God knows when that will happen) What do you guys suggest ?
I would appreciate some feedback.
 
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And how is this related to retrogression?

I'm being cynical because if you keep posting questions in sections where they don't belong, it going to spoil the utility of this forum. Immigration Portal is a great knowledge resource but it is up to the users to keep it organized.
 
MA_Labor said:
And how is this related to retrogression?

I'm being cynical because if you keep posting questions in sections where they don't belong, it going to spoil the utility of this forum. Immigration Portal is a great knowledge resource but it is up to the users to keep it organized.
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MA_Labor,

Do you have an ax to grind against this guy. I didn't see your rants when ppl were posting topics like "Happiness", "Dollar slide accelerates", "VT killings" et al which were in no way related to retrogression. And I've seen you yourself post comments in Eb3->EB2 and other threads.
Height of hypocrisy!
 
Nabeel1 said:
Gurus,

I need some advice. I got my EB3 I-140 Priority date for Nov 15, 2005. I moved a newer job at the same company with different responsibilites and became the lead. They didnt bump up my salary or anything. Lateral move. I have full 5 years experience with the same company. Now I want to do EB2 since Rest of World category is current. My manager is ok and wants to do it, but the lawyer is making my life miserable. Lawyers says that my prevailing wage is way too low (I already know that and the company is taking advantage, they know I cant move anywhere due to not having g/c). Lawyer said I am not even in the ballpark range for $$. I believe I am about 15 K lower than average coworker. What do you think I should do ?

My 6th year H1-B expires on Dec 08. So I have only 18 months until I renew it again.
1. Should I look for newer jobs ? Try EB2 different company ?
2. Or push my manager to choose the occupational code that has lower salaries ?
3. Or wait for EB 3 to clear up for ROW (God knows when that will happen) What do you guys suggest ?
I would appreciate some feedback.
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If your responsibilities are different, you should find prevailing wage for that position and compare, not compare to coworkers' salaries. Or you can try to find median wage within the industry, not within the company.
If it is $15K lower than median wage, then lawyer is correct, it can be a problem
 
Thank you guys GC and Elusive. I appreciate your advice. All my co-workers have the same responsibilities. So I should be in par with them. It will be a better idea for me to talk to the lawyer and see what the wage is within industry, rather than within company. Thanks again !
 
TheElusiveGC said:
Do you have an ax to grind against this guy. I didn't see your rants when ppl were posting topics like "Happiness", "Dollar slide accelerates", "VT killings" et al which were in no way related to retrogression. And I've seen you yourself post comments in Eb3->EB2 and other threads.
Height of hypocrisy!
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Hey JackaXXX,

Get a life. Stop following my posts. Also I was talking to someone else and I don't know how you got involved. Probably you have a habit of meddling in other people's business. All proof of your current ste of mind.

btw.. my question in EB3->EB3 is relevant becuse I am stuck due to retrogression and I am looking for ways out. Plus I was not being mean in my previous post, I did offer an explaination for my cynicism. I just thought that this question could serve a better purpose if posted in the appropriate section, so that other people could also benefit from it. And regarding off topics like "Happiness", "Dollar slide accelerates" etc. I don't care about them too much as they do not serve any immigration realted purpose.
 
MA Labor : Please lets not make this thread a bin for "I said this, and I am right". I read your comments. Thanks for posting. Now please, let me see if I can get a few more responses from the immigrations experts on here. I know they are not lawyers, but some of their advice is worth listening to. Enjoy your weekend.
 
You have four problems:

1. Convincing the DOL that your new position is different enough so that they will recognize your 5 years experience with the same employer who sponsoring the green card. Normally experience with the sponsoring employer is ignored.

2. Convincing the DOL that a Masters is a normal requirement for the job.

3. Convincing the DOL that your particular 5 years of experience is progressive enough to be considered the equivalent of a Masters degree.

4. Convincing the DOL that your salary is high enough for the position.

You have a high mountain to climb if you expect to get approved for EB2 with this employer. Find another employer who will pay you in line with your qualifications, and that will remove at least problem #1 and #4.
 
MA_Labor said:
Hey JackaXXX,

Get a life. Stop following my posts. Also I was talking to someone else and I don't know how you got involved. Probably you have a habit of meddling in other people's business. All proof of your current ste of mind.

btw.. my question in EB3->EB3 is relevant becuse I am stuck due to retrogression and I am looking for ways out. Plus I was not being mean in my previous post, I did offer an explaination for my cynicism. I just thought that this question could serve a better purpose if posted in the appropriate section, so that other people could also benefit from it. And regarding off topics like "Happiness", "Dollar slide accelerates" etc. I don't care about them too much as they do not serve any immigration realted purpose.
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It's not bout following your posts or meddling you poor sob. It's about the relevancy of the question. This guy's situation might be applicable to anybody. Anyway pricks like you don't deserve any time or attention. Hence, I shall not respond to any of your posts.
 
Thank you Jackolantern, altho I have never posted earlier on this forum, I read all of your posts. I have shared your signature tag line with some of my buds and it is truly hilarious :) Thanks again.
 
unitednations said:
3. Convincing the DOL that your particular 5 years of experience is progressive enough to be considered the equivalent of a Masters degree.
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No need to convince DOL of this.
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They automatically accept 5 years experience in any old thing? Surely they do need to be convinced, even if it is easy to convince them?

The salary is mainly taken from the prevailing wage determination received by the State. There is no convincing of DOL here.
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Maybe I should have worded it differently instead of using "convincing." The point is that the salary has to meet the prevailing wage criteria, and it sounds like it currently doesn't.

Sound like your company is playing by the rules.
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Sounds like they are bending or dodging the rules. If the DOL knew that other employees in the same position in the same company are getting paid $15K more than the salary stated on the labor app, without there being a basis to explain the differential (years of experience, higher degrees, etc.) I'd expect them to deny the application. It just happens that they probably don't know because the company won't tell them.
 
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UnitedNations : Thanks for your response. My lawyer has said that next month sometime some newer cost-salary structure stuff is coming out. (not sure if its true). Then they will know what the real prevailing wage is at the time. I use this link to check the salary structure -http://online.onetcenter.org/ - I am not worried about the 50% difference of roles as much as the salary structure. DOL may go like - wait a sec, we gave this guy EB3 I-140 a year ago and he is applying for EB2 5 years experience with the same salary and not a dollar more. Thats what I am worried about. Lets see what my lawyer says next month. Any idea of that salary information coming out next month ? (could be all boloni for all I know).
 
Jacklantern and United Nations - your comments may be incorrect

1. Convincing the DOL that your new position is different enough so that they will recognize your 5 years experience with the same employer who sponsoring the green card. Normally experience with the sponsoring employer is ignored.

Even if your job experience is 50% different then what you are being sponsored for; by default PERM will get denied since DOL analyst doesn't go that far into looking at your job duties and comparing with what you are being sponsored for. On appeal you would then argue that the experience you have gained with the employer is 50% different.

here is the FAQ I pulled out fragomen lawyers website regarding using experience with the same company to file for PERM.........

Is it possible to continue to use experience gained with the same employer as a requirement?

Yes. PERM delineates a standard that is similar to that which was used in the past, though it is arguably narrower. The rule adopts a variation of the exception articulated in Delitizer Corp. of Newton, 88-INA-482 (May 9, 1990) (en banc), where experience gained on the job in a dissimilar position may be utilized, so long as the employer can demonstrate that the foreign national was originally hired into or contracted to work in a job that is not “substantially comparable” to the job for which certification is being sought. A “substantially comparable” job or position is defined as one where the same job duties are performed more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on various duties, organizational charts, and payroll records.

With regard to a second exception, “infeasibility to train,” DOL asserted in the supplementary material to the regulation that the argument is rarely claimed in practice but will be maintained in acknowledgement of the legitimate interests of the business community.

For purposes of assessing experience gained with the employer seeking a labor certification, PERM provides that an employer is an entity with the same Federal Employer Identification Number (FEIN).
 
what makes you say that DOL will deny the PERM if you're using the same company experience?

Section J21 in the PERM application form asks if you're using any of the qualifying experience gained with the employer of the position substantially comparable to the job opportunity requested?

Now even if you were using the same ecompany experience and you had applied for an EB2 application you could still use the 5 years experience gained as a programming analyst if your new application is for an IT manager. I don't understand your comment as to why DOL will deny because in the PERM form for QJ21 your answer is going to be "NO" because your old position was not similar to your new position??? Please explain.

Also in Section J23 the question asks whether your employer paid for your education or training? Do you know how that impacts your application if you're using MS +2 years experience for your EB2 application and that your employer partially paid for your MS degree? Comments?

Thanks


unitednations said:
How is what I said wrong?

When you file electronic there is no paper, no argument. DOL doesn't do some great analysis. They see you are using the experience gained with the employer and then they deny it.

Then in appeal; you argue this stuff. Then they may approve it. It adds on considerable amount of time.

There is no "notice of findings" as it was with old labor system (ie., request for evidence). From the electronic submission; it is either approval, denial or audit. If they deny then you need to argue it.
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ok you're getting me worried now. i have a filed a PERM application where the primary qualification for the job is MS + 1 year experience and secondary job qualification is BS + 5 years experience. I qualify for this job opportunity both by primary and secondary type.

BUT my company has partially paid for my masters degree (which was defined as the primary qualification) and I qualify under the secondary job qualification too but all my 5 years experience has been with my current employer but in a different role and position than for which the PERM has been filed. Is my case at risk based on the comments you've made? the intent was to file under EB2 and then transfer my eb3 pd.

Please advise. Thanks


unitednations said:
I know; because I filed over 400 perm's. DOL ignores response to question j21.

DOL analyst just look at how many years of experience you have before joining current employer. If it isn't enough then they deny it. Then you appeal it. I have one that DOL denied and it was their mistake. Denial said person is "employed" with petitioning company but is using secondary job qualifications to meet the labor requirement and it doesn't contain the note "any suitable combination of training, education,experience is acceptable". Well, guess what, the person has never been employed with the company and the box is clearly marked that the person isn't working with the company. They mistakenly denied it. This was appealed in December 2006 and still no approval. Note: this is purely their mistake; there is no argument of law or anything. However, it has still been pending since December.

If you received the masters while you were working with the sponsoring employer then that causes even more problems for you; because you are not supposed to use the education gained while with the employer to satisfy education requirement.
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UN please help

What happens to old Pd if company branch is closed




I know this is not the correct thread but I tried posting this question in other threads but no one answered so I am posting it here again. so pls bear with me...
here is my situation

EB3 India PD Dec. 2002 I-140 approved in 2006, I 485 not filed got 3 year H1 extension beyond 6 years. Right now on west coast. Company is closing the office here and transferring everybody to east coast where they have another branch. My work is going to be same but now in new location.

1. Do I have to start everything again, labor, I-140?
2. What happens to my old PD? If the comapany does not have that office is I 140 (and PD) valid? It will be a disaster if I lose PD

any input appreciated

dhm2002
 
Moving to an EB2 designation with same company

Nishokie, I am in the same boat as you (pretty much) did you ever get an answer? Did you proceed with PERM application? (As an aside our PDs are the same almost to the day too and I also sent a 485 application via FEDEX on 6/30/07 - not doing me a lot of good at the moment though.)

nishokie said:
ok you're getting me worried now. i have a filed a PERM application where the primary qualification for the job is MS + 1 year experience and secondary job qualification is BS + 5 years experience. I qualify for this job opportunity both by primary and secondary type.

BUT my company has partially paid for my masters degree (which was defined as the primary qualification) and I qualify under the secondary job qualification too but all my 5 years experience has been with my current employer but in a different role and position than for which the PERM has been filed. Is my case at risk based on the comments you've made? the intent was to file under EB2 and then transfer my eb3 pd.

Please advise. Thanks
Click to expand...
 
you should find the answer on DOL per FAQ section regarding the experience and degree your gained from your own company. When i filed my perm, i was asked by my attorney to obtain letter from my college to certify that I finished all my required classes before i joined my current company as my diploma was issued on a later date. This is to say that you need this degree to file perm
 
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