Expert Advise needed EB3 to EB2

[GC_for_All]

Hi
Your help on the matter is appreciated. I am EB3-I. I filed for I-485 in July-07. I have been working on H1. Now I am going to switch to EAD by AC21. My new job has same job title and job duties. They have another condition for job. I will have to have a Masters in 8 years of starting my job.Their basic requirement is still Bachelors but Masters condition is kind of extra condition. My question is does this give me any trouble for my GC process because of Masters condition.Another question is will I be able to switch to EB2 based on this.
Bookmark and Share

[veni001]

What do you mean by "Masters in 8 years of starting my job"?
What is the minimum qualification required for the position now?

Hi
Your help on the matter is appreciated. I am EB3-I. I filed for I-485 in July-07. I have been working on H1. Now I am going to switch to EAD by AC21. My new job has same job title and job duties. They have another condition for job. I will have to have a Masters in 8 years of starting my job.Their basic requirement is still Bachelors but Masters condition is kind of extra condition. My question is does this give me any trouble for my GC process because of Masters condition.Another question is will I be able to switch to EB2 based on this.
Bookmark and Share

[GC_for_All]

At the time of joining I need only bachelor degree. But they want every candidate to earn Masters in 8 years after joining.I would make it clear. I am a teacher. As you know for a teacher basic requirement is Bachelors. I am changing to a new school. They have this special condition of earning Masters in 8 years from now.I hope I cleared the info.

[veni001]

You can use AC21 and switch employers, since the job requirement is only bachelor your employer can not file new GC in EB2.


At the time of joining I need only bachelor degree. But they want every candidate to earn Masters in 8 years after joining.I would make it clear. I am a teacher. As you know for a teacher basic requirement is Bachelors. I am changing to a new school. They have this special condition of earning Masters in 8 years from now.I hope I cleared the info.

[anu_t]

You can change a job ofcourse. Job duties and role etc is same, So I don't think so there is any possibility of EB2.

[GC_for_All]

I may be wrong but I am thinking if Job requires Masters then you can be EB2. My job requires Masters, may be not at the time of joining but they give some time to earn Masters.So I can start my job with Bachelors but I have to earn Masters later on.

[rajenk]

Switching to EB2 requires new Labor and I-140. If your new employer is willing to do that then you can get into EB2. The minimum requirement for EB2 is Bachelors with 5 years experience or Masters. So your Job should qualify and you should qualify to get the benefit of EB2.

Good luck.
Raj:)

[GC_for_All]

Thanks Raj. Another question I have is if join this job will it be a problem for my EB3 case since it requires Masters and my GC is in EB3.

[gc28262]

Thanks Raj. Another question I have is if join this job will it be a problem for my EB3 case since it requires Masters and my GC is in EB3.

You should consult your lawyer. From what I heard your EB3 petition won't be harmed.
Please read the following article from Ron Gotcher:
Case Study: Upgrade from EB3 to EB2 (http://www.imminfo.com/News/Newsletter/2010-06/case_study_upgrade_from_eb3_to_eb2.html)

Raj had heard that he could recapture his old EB3 priority date for use with his new EB2 petition. He was concerned, however, that filing for EB2 might damage his pending EB3. After investigating further, he learned that his pending EB3 could not possibly be harmed by the new EB2 filing. He also learned that while the new EB2 petition would share the EB3 priority date, the EB3 petition would be able to retain that date without any difficulties.

[rajenk]

No it will not. As long as the Job duties remains the same as your current job then that job is classified as "same or similar". That is what all AC21 memo states. Read the attached Q&A about AC21. That should clarify most of your concerns.

[tuhin]

I am in a similar situation. Changing jobs. The job requirement is 7+ years of experience with bachelors degree. I I switch, I will be using my EAD and will have to let go of my H1B. The future employer has agreed to file for my EB2. Can they do that when I am on EAD and no longer have a H1B visa?

[wtg4GCeb3]

I have question , if u have Bachelors degree ( India) are u eligible to apply GC in EB2?

[rajenk]

I am in a similar situation. Changing jobs. The job requirement is 7+ years of experience with bachelors degree. I I switch, I will be using my EAD and will have to let go of my H1B. The future employer has agreed to file for my EB2. Can they do that when I am on EAD and no longer have a H1B visa?

It is always safe to maintain dual status as a safety net!. To answer your question of filing GC again while you are on EAD. Yes you can. But make sure to file G28 (change of representation by attorney) to the new company that is hiring you. It helped me and also they helped with some of our RFE after I switched job. I did inform USCIS the job change and filed AC21 support documents to be safer along with G28. There were lot of LUDs at that time and it got settled down. There were no RFE related to my job change, but for my wife's immunization and medical.

Good luck
Raj:)

[rajenk]

I have question , if u have Bachelors degree ( India) are u eligible to apply GC in EB2?

Yes you are, if your bachelors degree is a four year degree and you have got progressive 5 years of experience.

[tuhin]

It is always safe to maintain dual status as a safety net!. To answer your question of filing GC again while you are on EAD. Yes you can. But make sure to file G28 (change of representation by attorney) to the new company that is hiring you. It helped me and also they helped with some of our RFE after I switched job. I did inform USCIS the job change and filed AC21 support documents to be safer along with G28. There were lot of LUDs at that time and it got settled down. There were no RFE related to my job change, but for my wife's immunization and medical.

Good luck
Raj:)

Thanks for the advice. Very helpful!

[desigirl]

At the time of filing your labor, if the job requirement is only a bachelors degree (irrespective of what the employer needs in the future years) it will be filed as EB3 only.
And logically speaking, the same employer will have no desire to redo the labor once you get the masters degree (assuming at that time, your job requirement will need a masters degree). It is unlikely that they will redo the whole process, just so that your EB3 PD is ported - this is just my opinion. However, if you get your masters and switch employers and ask them to redo your gc process and file as EB2, it might work.

[kumar2203]

Hi All,

I am planning to port EB3 to EB2 with same employer. Is my experience with same employer counts ? I am working for same employer from last 7 years, don't have master degree. If I apply Eb2 based on experience ,Can I apply with same employer or do i need to apply from other employer ?

Could you please advise ASAP

[anu_t]

desigirl what you are saying is absolutely right.What I found out is many people here think that just because they have masters degree and experience they can switch to EB2 with the same employer. They are missing the whole point here that one need a new job requirement. i.e. either one has to have a promotion(with EB2 jobcode) or switch to another employer with eb2 requirement.

[desigirl]

Hi All,

I am planning to port EB3 to EB2 with same employer. Is my experience with same employer counts ? I am working for same employer from last 7 years, don't have master degree. If I apply Eb2 based on experience ,Can I apply with same employer or do i need to apply from other employer ?

Could you please advise ASAP

Is your employer willing to file for you in EB2?

[sareesh]

Kumar2203, to answer your question. Yes, you can apply for EB2 from same employer but for a different position. You can use current experience but for a different position.

Thanks,
SG.

[greencardfever]

About the comment, "Yes, you can apply for EB2 from same employer but for a different position. You can use current experience but for a different position. " - can experience gained as a software engineer (at the same company) be used towards an EB2 application filed as a software architect? Does a software architect qualify as a "different position"?

[snathan]

About the comment, "Yes, you can apply for EB2 from same employer but for a different position. You can use current experience but for a different position. " - can experience gained as a software engineer (at the same company) be used towards an EB2 application filed as a software architect? Does a software architect qualify as a "different position"?

No...the devil is in the detail.

[greencardfever]

So then what qualifies as a "different position"?

[anu_t]

The job code should be different. (Not the job role) , i.e. "the new duties should be 50 % different from the old job code duties.".
The new Job code should have a EB2 requirement.
In today's economy getting a promotion in the same company is not that easy task.
But if you can then that will be wonderful. :)

[nissan_1]

So then what qualifies as a "different position"?

It's all depeneds on the Job requirement for the new position. Let's say, you new position is Architect. You could say 4 years Bachelors Degree and progressively earned 5 years exp. Also, you requirment should say out of 5 years, you should have 2 years of development exp and 1 year Tech Lead exp and 2 years of Team lead exp. So, pretty much you progress in your career to become an Architect. If you can prove this with exp letters from your company, you should be able to use you exp from same employer.

If you get promotion to become an Architect, your case will be strong.

This is what I summrize from my extensive research on this subject as I am also on the same boat and needs to convince this to my employer/law firm.

My advice is that talk to your employer and if they agree to file EB2, they will talk to company Lawyers. Your employer will ONLY listen to the Lawyers. However, if you work for a desi company, then its a whole different game and you better of joining a new desi company and file EB2.

[greencardfever]

Thanks for your reply. My current role (Software Engineer), has a job code of 1032.00 (Computer Software Engineers, Systems Software), i.e., my EB3 application was filed under 1032.00.

About the comment - The job code should be different. (Not the job role) , i.e. "the new duties should be 50 % different from the old job code duties.". - does this mean that if my EB2 application is filed under anything other than the job code # 1032.00, I can use the experience gained at my current company towards the EB2 application and the 50% different requirement will be met? Is that correct?

[greencardfever]

nissan_1, thank you for your insight into the matter.

I thought I'd provide you with a little more background about my case. My EB3/India application's I-485 is pending (priority date March 2006) since July 2007 and I'm currently on H1B, which was sponsored by my new employer after I invoked AC21. Although I currently have 6 years of work experience as a software engineer, I only had 4 years of work experience between completing my undergraduate in the US and invoking AC21 and joining my current employer (as a software engineer).

This means that I just have to use 1 year of work experience gained as a software engineer at the current company that I am working with (to meet the minimum BS + 5 years work exp. requirement for a new EB2 application). Also, my current company is willing to file my EB2 application as a Software Architect (with the BS + 5 years requirement).

To convince my current company immigration attorney, that this EB2 application will most likely be approved, I want to make sure the Software Architect job description is written in such a way so that the 1 year software engineer experience gained at the current company can be used towards the EB2 application's 5 years requirement.

Any thoughts on how this can be achieved?

[veni001]

nissan_1, thank you for your insight into the matter.

I thought I'd provide you with a little more background about my case. My EB3/India application's I-485 is pending (priority date March 2006) since July 2007 and I'm currently on H1B, which was sponsored by my new employer after I invoked AC21. Although I currently have 6 years of work experience as a software engineer, I only had 4 years of work experience between completing my undergraduate in the US and invoking AC21 and joining my current employer (as a software engineer).

This means that I just have to use 1 year of work experience gained as a software engineer at the current company that I am working with (to meet the minimum BS + 5 years work exp. requirement for a new EB2 application). Also, my current company is willing to file my EB2 application as a Software Architect (with the BS + 5 years requirement).

To convince my current company immigration attorney, that this EB2 application will most likely be approved, I want to make sure the Software Architect job description is written in such a way so that the 1 year software engineer experience gained at the current company can be used towards the EB2 application's 5 years requirement.

Any thoughts on how this can be achieved?

Based on the job code and description DOL (and USCIS) look at the minimum requirements and compare it against the market. If they feel that the employer is tailoring the job description to benefit your case, sure will be an RFE and the chances for PERM approval/denial are 50-50.

It's not going stop at DOL but also USCIS, look at the new EB1-EB2 policy memo at the following link
http://www.uscis.gov/USCIS/Outreach/Interim%20Guidance%20for%20Comment/Kazarian%20Guidance%20AD10-41.pdf

It would be better if you can find a EB-2 qualified job with a new employer!
:o