New eligibility factor for EB3 and EB2

[abhilashny11]

Hi Experts,
The question i've is:
I heard from my Immigration Lawyer that,from November 01, 2008, any person who works in Information Technology (IT) and who has Advanced Degree from USA like Master's is eligible for EB3 Category only and not EB2 category. Please confirm if the above statement is true or not.

Thanks,
Abhi

[h1techSlave]

If you heard it from a lawyer, it is true. They never tell lies :) :D

[belmontboy]

Hi Experts,
The question i've is:
I heard from my Immigration Lawyer that,from November 01, 2008, any person who works in Information Technology (IT) and who has Advanced Degree from USA like Master's is eligible for EB3 Category only and not EB2 category. Please confirm if the above statement is true or not.

Thanks,
Abhi

Did he also mention that to qualify for EB1 you have to be from Mars? :D

[RockyRocky]

Did he also mention that to qualify for EB1 you have to be from Mars?

Good one, dude!!

[langagadu]

Are you sure he is an attorney? May be he is a normal guy like me still in his halloween costume as Attorney.:D

Hi Experts,
The question i've is:
I heard from my Immigration Lawyer that,from November 01, 2008, any person who works in Information Technology (IT) and who has Advanced Degree from USA like Master's is eligible for EB3 Category only and not EB2 category. Please confirm if the above statement is true or not.

Thanks,
Abhi

[zCool]

Hi Experts,
The question i've is:
I heard from my Immigration Lawyer that,from November 01, 2008, any person who works in Information Technology (IT) and who has Advanced Degree from USA like Master's is eligible for EB3 Category only and not EB2 category. Please confirm if the above statement is true or not.

Thanks,
Abhi

There was an article @ immigration-law on it.. and then some subsequent discussion on IV..
http://immigrationvoice.org/forum/showthread.php?t=22242

[eb3retro]

If you heard it from a lawyer, it is true. They never tell lies :) :D

too good...

[rsdang]

Hi Experts,
The question i've is:
I heard from my Immigration Lawyer that,from November 01, 2008, any person who works in Information Technology (IT) and who has Advanced Degree from USA like Master's is eligible for EB3 Category only and not EB2 category. Please confirm if the above statement is true or not.

Thanks,
Abhi

EB2 or 3 depends on the Job requirements primarily... you could have a masters and be working for a job that requires a bachelors as minimum requirement then you are only going to get an EB3 (no exp example)

[dvb123]

10/31/2008: PERM Filing Alert for IT Occupations and Certain Professional Occupations

When the permanent labor certification system used DOT system, there were a number of IT occupations that fell under SVP 8. When the DOL changed the permanent labor certification system, it abandoned DOT system which focused on SVP concept. Since then OFLC has been using O*Net Job Zone concept and applied Job Zone 4 as equivalent to SVP 7 that can require from two years to maximum four years of preparation time (education, training, and experience). The Job Zone 5 is practically equivalent to SVP 8 that can require from four years to 10 years of preparation time (education, training, and experience). During the DOT era which ended on March 27, 2005, some IT occupations fell under SVP 7 and some IT occupations fell under SVP 8. Accordingly, EB-2 labor certifications for IT occupations were filed and approved when the occupations fell under SVP 8. Software Engineer, DBA, Science/Engineering Application Programmer, etc. illustrate these IT occupations.
When the O*Net Job Zones replaced the DOT, the system downgraded all the IT occupations into Job Zone 4 except Computer Information and System Manager occupation (IT Manager) which remained at Job Zone 5. Since all the IT occupations other than IT manager belonged to the Job Zone 4, had the DOL strictly adhered to Job Zone system as they interpreted, any applications for IT occupations that required more than a bachelor's degree plus two years of experience should have faced a business necessity challenge and denials in most of such applications. However, from March 28, 2005 until June 2007, the DOL de facto adhered to their previous practice under the DOT system and most of the EB-2 IT occupations such as Software Engineer, DBA, etc., which belonged to SVP 8 under DOT system, have been approved without much challenge.
The landscape changed beginning from July 2007 when they started focusing on the integrity of labor certification system. The agency started challenging such EB-2 requirement even for the SVP 8 IT occupations under DOT if it belonged to the Job Zone 4. The challenge took a form of "audit." Such EB-2 requirements have faced a massive challenge and audits. However, the former SVP 8 IT cases have been approved after the audits in a large number of cases. This practice is expected to change once the new form ETA 9089 PERM application program is launched next year since the new form will automatically consider such EB-2 requirement for IT occupations as the business necessity cases for exceeding the Job Zone 4 requirement. Initinally, DOL was scheduled to launch the new ETA 9089 form beginning from January 1, 2009, but luckily they pushed off the starting date to late Spring of 2009. That was a good news.
Bad news is a further change in O*Net Job Zone for IT manager occupations. They just changed the O*Net data into version 13.0 which down graded IT manager job zone from 5 to 4! The last vestige of Job Zone 5 in IT occupations has been cruelly crushed to death. Since EB-2 occupation must require either a master's degree or Bachelor's degree plus five years of progressive experience, now all the IT occupations exceed the Job Zone 4 allowed preparation time. We will have to wait and see how this change in Job Zone for IT manager occupation will be managed in actual adjudication of PERM applications hereon, but it is certainly not a positive news.
The recent downgrading of professional occupations from Job Zone 5 to Job 4 does not end with the IT occupations. There are a number of professional occupations that have been downgraded practically to nonprofessional occupations in some cases. Company General Manager is downgraded to Job Zone 3!! Employers who start PERM recruitment should review the attached Job Zone changes and seek legal advice. Believe me, there are a lot of surprises.

[for_gc]

Is this true ? What does this mean ? What is the source of this info ?

[maddipati1]

dvb123, good one, thx for posting, very useful,
please post the link to the source

10/31/2008: PERM Filing Alert for IT Occupations and Certain Professional Occupations

[angelfire76]

Interpretation of a rule or law is not absolute but in context. Your lawyer seems to have forgotten that and is generalizing a ruling.

What has the ruling said: There will be an audit for business necessity if the job requirements exceed the Zone requirements the job is in.
IT occupations include various senior level positions too which require several years of work experience and advanced degree. As long as the sponsoring company is able to prove that they need a person having those qualifications/skills the labor is likely to be approved under EB2.

Non-IT Masters degrees do not automatically come under EB2 either, as one of the members thinks it will. If that is truly the case, then the DOL might be soon looking at a lawsuit challenging the premise that non-IT occupations are somehow more demanding and require more preparation and experience, which warrants that it be placed in EB2.

[dvb123]

http://www.immigration-law.com/

[dvb123]

Read this thread for complete info on why they changed all IT EB2 professions to EB3

http://immigrationvoice.org/forum/showthread.php?t=22242

[abhilashny11]

Firstly, i would like to thank you for replying to my question. Please find the below email sent by my lawyer today:

As per our conversation, attached are the two lists that you can review.

Starting from November 1st *Onet has changed the positions for software professionals, please find information below according to *Onet http://online.onetcenter.org/

There are no EB2 positions available for the Software professionals, only EB3 positions are available. However as we discussed earlier if the company has a business necessity and are able to produce the documents for the business necessity you can file the case under EB2, which is still beyond the requirement according to Labor Department.

[godspeed]

Firstly, i would like to thank you for replying to my question. Please find the below email sent by my lawyer today:

As per our conversation, attached are the two lists that you can review.

Starting from November 1st *Onet has changed the positions for software professionals, please find information below according to *Onet http://online.onetcenter.org/

There are no EB2 positions available for the Software professionals, only EB3 positions are available. However as we discussed earlier if the company has a business necessity and are able to produce the documents for the business necessity you can file the case under EB2, which is still beyond the requirement according to Labor Department.
Thanks for sharing this info, you mentioned two lists? where is the second one?
One thing is clear, this is going to affect future petitions, any idea on the approved/existing cases?

[dvb123]

I think it will effect cases that are not adjudicated also. However u better check with ur lawyer.

[godspeed]

I think it will effect cases that are not adjudicated also. However u better check with ur lawyer.

Typically, any new regulations will affect new petitions, historically USCIS did not touch past cases for any new regulation changes.
But you are right, it doesn't hurt to check with our attorneys.

[EB3_SEP04]

We all know this EB3-EB2 game is total non-sense and unjust.

So many extra-ordinary people who could/should have been in EB2 are in EB3 simply because : corporate lawyer filed in wrong category, they did not want to work for a desi employer who would file in EB2 in exchange for a lot of things, they did not want to buy an approved labor and create fake experience certs/affidavits, or for various other family/job realated reasons which have nothing to do with his/her education/skills/experience.

At the same time, a lot of street smart people got their EB2 labor/I140 approved while they worked at gas stations.

In my opinion all IT professionals, MBA's, Lawyers, Doctors and all other BE/Btech/ME/MTech engg. should be in SAME category (EB2 or EB3). The only people who should be in a preferred category are the scientists who are actually working as research scientists for a govt or non-profit organization (not just anyone who bought a PhD from Dhanabad University for Rs 15000).

If there must be EB2 vs. EB3 then it should be based on a well-defined, measurable and well followed criteria, for example a aptitude/IQ test, interview/GD, there are many other ways to cover all types of talents.

[whiteStallion]

Well said !

We all know this EB3-EB2 game is total non-sense and unjust.

So many extra-ordinary people who could/should have been in EB2 are in EB3 simply because : corporate lawyer filed in wrong category, they did not want to work for a desi employer who would file in EB2 in exchange for a lot of things, they did not want to buy an approved labor and create fake experience certs/affidavits, or for various other family/job realated reasons which have nothing to do with his/her education/skills/experience.

At the same time, a lot of street smart people got their EB2 labor/I140 approved while they worked at gas stations.

In my opinion all IT professionals, MBA's, Lawyers, Doctors and all other BE/Btech/ME/MTech engg. should be in SAME category (EB2 or EB3). The only people who should be in a preferred category are the scientists who are actually working as research scientists for a govt or non-profit organization (not just anyone who bought a PhD from Dhanabad University for Rs 15000).

If there must be EB2 vs. EB3 then it should be based on a well-defined, measurable and well followed criteria, for example a aptitude/IQ test, interview/GD, there are many other ways to cover all types of talents.

[angelfire76]

We all know this EB3-EB2 game is total non-sense and unjust.

So many extra-ordinary people who could/should have been in EB2 are in EB3 simply because : corporate lawyer filed in wrong category, they did not want to work for a desi employer who would file in EB2 in exchange for a lot of things, they did not want to buy an approved labor and create fake experience certs/affidavits, or for various other family/job realated reasons which have nothing to do with his/her education/skills/experience.

At the same time, a lot of street smart people got their EB2 labor/I140 approved while they worked at gas stations.

In my opinion all IT professionals, MBA's, Lawyers, Doctors and all other BE/Btech/ME/MTech engg. should be in SAME category (EB2 or EB3). The only people who should be in a preferred category are the scientists who are actually working as research scientists for a govt or non-profit organization (not just anyone who bought a PhD from Dhanabad University for Rs 15000).

If there must be EB2 vs. EB3 then it should be based on a well-defined, measurable and well followed criteria, for example a aptitude/IQ test, interview/GD, there are many other ways to cover all types of talents.

There is already a preferred category for research scientists worth their salt: EB1 with NIW. What's there to say that an IQ test / aptitude test cannot be gamed?

EB2 vs EB3 already has a well defined criteria: job requirements. You could be a Ph.d from a hot-shot university, but may not be able to perform or may not be as valuable to a company as somebody with BS/MS with x yrs of work related experience.

Also if you are truly extraordinary, then it should be a cinch to scale up the corporate ladder and apply for a green card when you've reached a position that can qualify as EB2. No: you want to have your cake and eat it too: i.e. get an early PD and also apply in a faster (is it really now?) category. Can't sympathize with that.

[axp817]

I have to agree with AngelFire here. There is a clear distinction between the EB2 and EB3 eligibility requirements. And who are we kidding, if your employer or attorney were willing to file an EB2 petition for you, would you be the "One category for all, Joe" that you are now, and demand that your employer file in EB-3 instead? Of course not.

I'll admit it, I probably would have felt the same way if I was EB3. Being human sometimes makes us want others to not get what we don't have.

I am amazed that there supposedly are people working at gas stations with valid EB2 petitions? And a "LOT" of them, too. I highly doubt that.

There is a process and system in place to ensure the validity/genuine-ness of each application. If phony applications slip through that process, the process needs to be fixed and more checks established. I don't see how scrapping EB2 can fix that.

I'll give you an example. I know someone that has an EB1 (NIW or EA, one of these two) petition in process. To the best of my judgement, I don't feel that this person qualifies (at all) to be an EB1 Green card recipient. And this person getting their green card before mine comes along, will cause some discomfort to me. But I can't let that bother me too much. There is a system in place to ensure that these type of things don't happen, and I would like that system to improve so that the people who truly deserve EB1 Green cards continue to have that option.

I also know someone else that used the labor substitution option to get their green card within a year - start to finish. But this person was a genuine candidate for labor substitution. He had the necessary academic qualifications and work experience prior to the date of the LC, and the job was a valid one as well. He was a true example of what the labor substitution process was introduced for. Even if a large percentage of labor sub cases weren't as strong as his, I find it hard to hate everyone that benefitted from it, such as this person. It would be just wrong to say that this person violated any rules, because he didn't. Yes, I wish I qualified for some of these fast track options, but I don't, and I can live with that.


Thanks,

[dvb123]

We will have to wait and see how this change in Job Zone for IT manager occupation will be managed in actual adjudication of PERM applications hereon, but it is certainly not a positive news.

Can somebody find out from their lawyer if PERM applications pending approval from department of labor will be effected?

[niklshah]

i would be happy if every one has same playing field.. i am a pharmacist and for pharmacist they need Pharm D to get license which is equivalent to Ph.d. in US and we are still in EB3 and i think every one will agree that demand of pharmacist is much more than any other field...

[Kushal]

Are you sure he is an attorney? May be he is a normal guy like me still in his halloween costume as Attorney.:D

You are funny guy