Should I port from Eb3 to Eb2? Please Advise!

[natasha_reddy]

Hello Friends,

First of all, I would like to thank each one of you for your valuable contributions to this forum, forums like these prove to be very conducive for people like me who are in dire need of immigration advise. So, here is my situation..

I'm working as a typical "Programmer Analyst" for a desi consulting company. My labor was approved under Eb3 in May 2009 (since I didn't qualify for EB2 then) and my I140 a month later. I will be completing 5 years of work experience under the same employer this October and most importantly with my PD of 2009 for EB3 I see no hope. Therefore, I'm seriously considering moving to Eb2. I have a 4 year Bachelor's degree in Computer Science, so I assume it's one of the qualifying factors.

My employer was not thrilled about promoting me or starting a new EB2 application, of course he wants to make money off of me as long as he can! Therefore, I'm in the process of finding a new employer who can start my EB2 process(most probably another consultancy).

FYI: I have 1.8 years of H1b left.

Could any one of you please advise on:

-How I can achieve this?
-Other Criteria s I need to qualify for?

Also, please forward any experienced attorney references you may have? Any bit of information is much appreciated. Thanks a lot for your time and patience.

PS: I work in Bay area and make 85K per year.

Sincerely,
Natasha

 

[Jackolantern]

Are you EB3 India or China?

If yes, you really do have an eternity to wait before you can file I-485, during which time you won't have any AC21 protection. And you are smart to seek a new employer for EB2, because experience with the same employer is generally ignored when determining whether you qualify for EB2. But you should also be aware that it's not enough for you to have the Bachelors + 5 years or Masters; the job itself must also have that as a requirement.

The problem is that porting the PD requires having a valid I-140. If you change jobs and the original employer revokes the I-140 before you can port, you're stuck with the newer PD. So your prospects of porting the PD aren't good. Changing jobs and taking the risk of whether you will be approved in EB2 may not make sense if you're going to be stuck with a 2011 or 2012 priority date. However, if you're not from India/China, having a new PD would be OK since the other countries are almost always current in EB2.

You also have to get the new employer to file the labor cert. before the end of your 5th year of H1B, in order for you to qualify for H1B extensions beyond your 6th year. So if you don't have any experience before your current employer, and therefore must wait until October before you can change jobs, that gives the new employer very little time to do all the advertising and other legwork to file the labor certification before the end of your 5th year of H1B.

All factors considered, you're probably better off staying with the same employer if you're from India or China.

 

[natasha_reddy]

Jack, Thanks a ton for the detailed response. I totally get what are you are saying, but I need couple more clarifications:
1. Although, my 6 year H1B should ideally end in October 2012, I have my extension until April 2013. I have couple of potential employers who are willing to start my GC in EB2 as soon as October(I'm from India). Do you still think I should stick to my current employer?
2. There is no real clarity about porting PD after the original employer revokes I140. I have read abstruse facts about this, some say -Employer cannot revoke unless it's a fraud case, others say even if he revokes, the PD is still mine (provided I have copy of I140) and some disagree to both. Do you think I have a chance? Ofcourse, I know you are not an attorney, but I'm just trying to gather as much info as possible before I talk to my lawyer.

Thanks again,
Nats

 

[Jackolantern]

1. How did you get an extension until April 2012? Did you recapture 6 months because of time outside the US? If so, that would give you the 6 months from October 2011 to April 2012 to file your labor certification. If you're confident that they can and will get that done, you can take the chance and change jobs.

However, my employer took more than 6 months to run the ads and get everything together to file my labor certification. You need to research your future employers more to see if they are efficient enough to get yours done within the 6 months. Mine was a Fortune 500 company with tens of thousands of employees but very few on H1B (and even fewer sponsoring for a green card), and their large bureaucracy combined with their unfamiliarity with the process created numerous delays.

2. If you qualify for AC21 protection, meaning that your I-485 has been pending for at least 180 days and your new job is "same or similar" to the original job, the employer can't revoke your I-140; it stays alive unless there is fraud or some other problem like that. But you haven't filed the I-485, so you don't qualify for AC21, and the employer can revoke the I-140 when they want. If they revoke your I-140 before you can port the PD, you're stuck with the new PD, which would cause you to lose 2.5 to 3 years, effectively erasing the gains from switching to EB2.

Your other problem is that EB2 applications get more scrutiny, and that scrutiny can lead to them saying that you or the job don't meet the EB2 requirements therefore you must file in EB3. So you can't be sure that you'll end up in EB2 if you change jobs.

Overall you're probably better off staying with your current employer, while seeking permanent resident status in another country like Canada or UK or Australia or New Zealand that uses a points system and will give you permanent resident status in 1-3 years (while you wait inside the US during the process). Or use your US experience to line up a good job in India.