Proving that I am "uniquely qualified"

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yeayunc

New Member
Despite a prior commitment in writing to begin my Green Card application upon acceptance of my job offer, my employer is now pushing to postpone the process for 2 years - so that I can "demonstrate my abilities, grow into bigger jobs and be 'uniquely qualified' in future assignments".

The HR person is arguing that the company's legal counsel is saying that my application will most likely be denied as they would be hard pressed to prove that I am 'uniquely qualified' for the position and that no U.S. citizen is 'minimally qualified'.

I graduated with honors at both the undergraduate and graduate levels. I have an MBA from a top five business school and possess highly analytical pre-MBA work experience (which is required of my current position). While it is true that I am switching careers from investment banking into brand marketing, I also have had 5 months of solid brand marketing internship experience and am trained in the use of 2 different marketing research databases (which is rare). Is my case really that weak and thus, not worth fighting, or is this an HR ploy to tie me to the company for a longer period of time?
 
Originally posted by yeayunc
Despite a prior commitment in writing to begin my Green Card application upon acceptance of my job offer, my employer is now pushing to postpone the process for 2 years - so that I can "demonstrate my abilities, grow into bigger jobs and be 'uniquely qualified' in future assignments".

The HR person is arguing that the company's legal counsel is saying that my application will most likely be denied as they would be hard pressed to prove that I am 'uniquely qualified' for the position and that no U.S. citizen is 'minimally qualified'.

I graduated with honors at both the undergraduate and graduate levels. I have an MBA from a top five business school and possess highly analytical pre-MBA work experience (which is required of my current position). While it is true that I am switching careers from investment banking into brand marketing, I also have had 5 months of solid brand marketing internship experience and am trained in the use of 2 different marketing research databases (which is rare). Is my case really that weak and thus, not worth fighting, or is this an HR ploy to tie me to the company for a longer period of time?
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I think the HR person is lying. Experience gained with your current employer (who is also the GC sponsor) CANNOT BE USED TOWARDS PETITIONING FOR YOUR GREEN CARD. That is the law.

However they may be right to some extent in suggesting that they cannot prove with conviction that there are no US pesons available with the skills required for the job (NOT THE SKILLS YOU HAVE!). If the company has had layoffs recently and the people laid off had skills similar to yours then the company argument holds.
 
They might also be "simply" waiting for the economy to pick up. At any rate, there is no harm in putting together a case, with current sppeds, it won't be even looked at for at least year or so. Even if it get's denied, well, you can reapply in six month.

Tell them if it's ok to hire your own laywer (maybe they don't want to finance your GC?)?

And again, this is absolutelly true, your experience with the company can not be used (you can work for 10 years, still, it's not worth a penny as long as GC is considered).
 
Originally posted by Hexamon
And again, this is absolutelly true, your experience with the company can not be used (you can work for 10 years, still, it's not worth a penny as long as GC is considered). [/B]
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Is it just me or does this rule not make any sense? This seems to do nothing other than penalize the sponsoring company since, were the employee to apply to any other company, he presumably could use any/all experience gained at the first company?

Mike
 
The rule makes perfect sense.

For an employment based GC to be granted there must be no USCs or PRs that are minimally qualified for the position. For a LC, the employer can only state requirement that are the MINIMUM the employer will accept for the position. The employer can't state that a Master's Degree is a requirement for the position since you were hired for the position before you obtained a Master's Degree.

You must put the minimum job requirements of the LC. If you are currently in that position, you obviously had at least the minimum requirements when you started with the company (that's why it's tough to use experience with the current employer) but there may be people with much less experience or education that also hold that position. As an example, if an attorney is working as a paralegal, it would not be correct to state that the minimum requirements for a paralegal position is a Juris Doctorate. The fact that the candidate holds a JD is not relevant except to show that the JD holder meets (in this case exceeds) the minimum requirements for the position.

An example of a situation where experience of education gained while working with the current employer would be if I hire a paralegal on an H-1 who is attending law school at night while working for me. the paralegal then gets a JD and passes the bar. If I then apply for a GC for this person as an attorney, I can require the JD since it clearly is not the same position or even a directly promotable one. However, using experience with the sponsoring employer is tricky and must be dealt with in the beginning of the LC process.
 
Thanks for your reply!

Everything you said made sense but I think that maybe we are talking about 2 different things?

The following scenario might make my point more clear (or not :)):

Lets say I'm hired to fill a relatively junior position at company A under an H1B. I'm at A for 4 years before they start to look into the GC process, at which point I now have 4 additional years of experience under my belt and I'm functioning at a senior-level (I may even have been promoted at some point). I might have acquired entirely new skills which I didn't have before joining A.

The way that I was interpreting the LC rule led me to believe that the experience that I gained over the last 4 years can't be used in the LC process? If so, then this would seem to penalize company A since I could clearly quit that company and apply to company B using any/all experience that I now have for a position at that new company, no?

Or am I wrong in how I'm interpreting the rule? The final paragraph of your reply seems to indicate that the experience gained at company A *could* be used as long as the LC is done for a senior position at that company (one which I now clearly qualify for but wouldn't have 4 years earlier)?

Thanks for your feedback -- its very much appreciated!

Mike
 
Th erule would make perfect sence if the process' of getting LC cleared or rejected didn't take years. Say, if LC takes up 2-3 month, then you can't really gain too much experience or new degree, right?

It all boils down to backlogs. Wrong rules for wrong reality.
 
My attorneys have told me, and I have found the same statements on other websites, that you can use the experience gained at the sponsoring employer as long as the position you are applying for is different from the one you gained that experience in, and a recrutiment effort was carried out at the time of your move to the new position.

In fact, one of the PERM regulations that AILA and immigration attorneys are trying to fight is the one that will make the experience gained at the sponsoring employers completely inadmissible. I guess logic dictates that it is admissible now (with appropriate restrictions).

Also, since my RIR petition had to be stopped because of too many qualified candidates, our attorneys have recommended that I find other positions within the company so they can start from scratch using the experience I have gained so far.

Any thoughts?
 
Originally posted by Mickey_32
My attorneys have told me, and I have found the same statements on other websites, that you can use the experience gained at the sponsoring employer as long as the position you are applying for is different from the one you gained that experience in, and a recrutiment effort was carried out at the time of your move to the new position.

In fact, one of the PERM regulations that AILA and immigration attorneys are trying to fight is the one that will make the experience gained at the sponsoring employers completely inadmissible. I guess logic dictates that it is admissible now (with appropriate restrictions).

Also, since my RIR petition had to be stopped because of too many qualified candidates, our attorneys have recommended that I find other positions within the company so they can start from scratch using the experience I have gained so far.

Any thoughts?
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I would also appreciate feedback on the above.

From where I stand (not being an INS employee / immigration lawyer), your first paragraph makes complete sense to me.

Not caring where the experience comes from (as long as it is applicable to the job towards which it is being applied) seems logical and, as I suggested earlier, to do otherwise would seem to penalize the company at which you gained the experience since you could presumably use that experience to apply at another company.

Again, as long as you're in the country legally (on a valid visa), I don't see why experience gained at a company should be invalid if you are applying for LC through the same company (for a position which requires that experience -- e.g. a more senior position than the one for which you were originally hired).

The proposed PERM change (if this is really on the table) would be a major step backwards IMO.

ETA
 
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