Retrogression & Career Growth

[berkeleybee]

I am starting this thread to move yet another off topic conversation from the Doing the Math thread. Apparently people involved in this conversation couldn’t figure out how to start a new thread or read their private messages…Sigh.
If you want to go off topic please start a new thread. Go to the http://boards.immigrationportal.com/forumdisplay.php?f=241 page and click on the new thread button on the bottom left of the screen.

The Conversation So Far:

Vsaksena on Oct 4, 2005

Folks I had a question from a growth perspective. My PD is Aug, 1 2002 (EB2). (I-140/485 concurrent filing - June 25' 2003). Based on the current Visa cutoff dates & optimistic projections on this forum, I am potentially looking at atleast a 3 yr wait.

How does this affect our jobs? e.g. when my petition was filed, I was a Sr Analyst (Manager level) In the 6 years since Labor Cert being filed, what if I get promoted? Does that make me ineligible for immigration as I won't have the same job. In addition what about pay raises?

Realistically USCIS should not expect the "best-&-brightest" they want to immigrate to stay in the same job/position without any advancements.

Please share any thoughts

Spidey on Oct 4, 2005

That's a million $$ question. And the short answer is YES changing your position by virtue of career advancement does jeopardize your Labor Certification status. Small increments in salary may not but growing in career by responsibility more than 50% different from your Labor Certification will.

Take everything I say here with a grain of salt, I am not an expert but these are opinions I have formed by reading while waiting.

I am in a similar situation on many levels and this has been a constant thought for me as well. Unfortunately the answer is not one we want to hear.
From your employers perspective, they get the benefit of this process for as long as you are stuck and I believe these rules are very slavish in tradition and sometimes I wonder maybe even in intent.

Vsaksena on October 4, 2005

Spidey - so the salary cannot have grown by more than 50%? or the responsibilities can't have grown more than 50%? HOw do you measure growth in responsibilities?

Somebody who came in on the management track can very realistically expect to be atleast a Director if not a Sr. director or even VP (optimistically) in 6-8 years (1 yr before labor applied for + 6-7 yrs of waiting time)

Most employers would want to increase responsibilities for qualifies personnel! Our inabilitiy to grow might actually make them want to NOT keep us in employ!!!

What do the forum members think abt this?

I was pretty concerned about this issue too. I have been promoted twice since I was originally hired, and my salary has increased dramatically. If things go the same way, I will probably be promoted again before this saga ends.

So I talked with my/my firms attorney last week. Here is what she had to say – labor certs were never meant to take so long, so the framers did not set out explicit guidelines for this situation, that said:

1) Even though I have many more responsibilities now, they try to make the argument that my promotions are “in-line” promotions. That I still do perform the core responsibilities of the job I was hired for. Apparently this is what they have done in the past – they do this in the petition letter, and in the letter from the company. They have not had an RFE on this subject, but they would make similar arguments if they did. [BTW, they have already done this for my H-1 applications].

2) If the promotions do not fit this kind of description – for example, you were hired as a circus artist, but now write code – then remember that EB visas are issued for prospective employment – for a job that you will do when the petition is approved. You could be doing something else entirely before then, so long as you do meet the requirements and are present for the job defined on the petition when it is approved. So if you and your company agree, perhaps you go back to being a circus artist when the greencard is issued, and then nothing really stops your firm from making you a programmer right after that. I did not ask her if there are legal limits on whether you can be a programmer the very next day, or next month or what. Clearly this makes sense only if you are in a non-exploitative situation and your firm really needs you, won’t screw you over.

Have other people received similar advice?

 

[vsaksena]

I was pretty concerned about this issue too. xxxxxx

So I talked with my/my firms attorney last week. Here is what she had to say – labor certs were never meant to take so long, so the framers did not set out explicit guidelines for this situation, that said:

1) Even though I have many more responsibilities now, they try to make the argument that my promotions are “in-line” promotions. That I still do perform the core responsibilities of the job I was hired for. Apparently this is what they have done in the past – they do this in the petition letter, and in the letter from the company. They have not had an RFE on this subject, but they would make similar arguments if they did. [BTW, they have already done this for my H-1 applications].

2) Clearly this makes sense only if you are in a non-exploitative situation and your firm really needs you, won’t screw you over.

Have other people received similar advice?

what if the applicant goes on to head the department/group of which he/she was a part of at the time of Labor Cert filing? I started out as Sr. Analyst, Since then been promoted twice (last time was Apr'2004) currently at Director level, my core responsibilities (from when LC was filed) are now performed by folks in my group. I have no issues with my company regarding growth, OFCOURSE I have not informed them about uncertainities emnating from promotions. But at the same time I am not sure how aggressive I can be in seeking further advancements.

I have other friends in similar situations, and none of us are sure abt implications

 

[asdqwe2k2]

unless you get an RFE, when they adjudicate your I-485 you are fine, you will get approved..

But if you get an RFE, unfortunately, the GC will be rejected on the grounds of "same or similar responsibilities" and probably "title".

There is no way that a director/manager level position will have "same or similar" duties as programmer or systems analyst.. This has been discussed lots of times before in other threads and other people's I-485 unfortunately were rejected..

 

[vsaksena]

unless you get an RFE, when they adjudicate your I-485 you are fine, you will get approved..

But if you get an RFE, unfortunately, the GC will be rejected on the grounds of "same or similar responsibilities" and probably "title".

There is no way that a director/manager level position will have "same or similar" duties as programmer or systems analyst.. This has been discussed lots of times before in other threads and other people's I-485 unfortunately were rejected..

Yes it is the "Title" aspect that concerns me. I am not in the software field. Sr Analyst in my field (logistics/Supply Chain) is a manager level position, and the core responsibilities just increase don't change (expanded responsibilities with P&L aspects thrown in) Everything I did is done by members of my group, and I have the sign off on everything.

Does the above explanation make any diffrence in my case?

 

[berkeleybee]

Links to threads

unless you get an RFE, when they adjudicate your I-485 you are fine, you will get approved..

But if you get an RFE, unfortunately, the GC will be rejected on the grounds of "same or similar responsibilities" and probably "title".

There is no way that a director/manager level position will have "same or similar" duties as programmer or systems analyst.. This has been discussed lots of times before in other threads and other people's I-485 unfortunately were rejected..

Asdqwe2k2, could you link to those posts? Or at least tell us the thread subject headers?

Thanks

 

[tusharvk]

I have seen this done for h1b application;
but, for h1b, it is a different story. the company needs to file lca and put the title there and pay atleast the salary mentioned in the lca.
as long as the duties mentioned in the i129 are the duties performed, it should not matter.

on murthy and\or fdbl, I have read that promotions ("in-line" as mentioned by berkeleybee) are fine with uscis.