Dear New_yo_gc:
The statement that img_g made about EB2/EB3 being decided at the I-140 is incorrect. EB2/EB3 is the FIRST decision your employer must make before submitting the PERM petition - i.e., the credentials of the position for which your case is being applied. If you are being applied under EB3, the requirement will be a Bachelor's degree plus X #yrs. of experience; if you are applying under EB2, the requirement will be a Master's degree plus X #yrs. of experience or the alternative of a Bachelor's degree plus 5 years of progressive experience. You cannot change your category of filing at the I-140 level unless you do what is called a re-capture, which is basically after you file the I-140 under EB3, the company files a new EB2 PERM petition on your behalf and then does a "recapture" which lets you secure your previous priority date under the new category.
The decision to be EB2/EB3 is based on several factors. There could be a hundred reasons as to why your company would choose EB3 instead of EB2. They might not have the funds to support the higher salary as required for EB2 (ESPECIALLY a Bachelor's + 5yrs. for which the SVP level is very high and therefore ensures normally a level IV salary - high wage.) They might not be willing to pay you that much for EB2 (they are only required to pay you the wage as listed on the PW in the PERM petition after your I-485 is approved, by the way.) Just because you have a Master's degree or a Bachelor's +5 doesn't mean your company HAS to file in that higher category for you. They also must state under penalty of purgery that they won't hire anyone for that position who has any less than what you possess. So, if they have people holding Bachelor's degrees who work in those positions, that contradicts that statement.
Additionally, EB2's are becoming significantly more work (I don't want to say "harder" because that's not the right word...) as the DOL is auditing many of the cases, especially for IT positions, which causes more work and delays in approvals.
HOWEVER it is important to note that just because you were hired based on the fact you had a Bachelor's degree (Sr. Programmer Analyst is normally a Bachelor's degree under the H-1B; however I don't have your documentation in front of me so I obviously can't confirm that - just speculating based on past experience) doesn't mean you automatically have to be an EB3 application.
So, as you can see, if your PERM petition is filed based on a Bachelor's degree, your case is yes, EB3.
Have you talked with your company to find out why you were processed as an EB3 application? That seems like the most logical place to start, since they would have to confirm the requirements for your position before anything else was initiated. I see you mentioned talking about your MS with the paralegal and discussing and internal evaluator - why didn't you seek an outside evaluator (Trustforte, etc.) ?
How many years is your Bachelor's degree and how many years is your Master's degree? If you have a 3 yrs. Bach and a 3 yrs. Master's degree, you would be OK under the Mast. degree requirements. If you have a 4-yr. Bachelor's degree and a 2 yr. Master's degree, you would be OK under the Master's degree requirements. The only area where it gets "sketchy" (i.e., USCIS 99% of the time does not accept it) is if you have a 3 yr. bachelor's and a 2 yr. master's degree. If that is the case, I could definitely understand being filed under EB3.
Please provide your specifics so I can more thoroughly take a look at these details.
