EB2 filing - Does OPT experience count

[harinim]

Hi all,

The following is my status

Jan 2004 to Dec 2004 - OPT
Jan 2005 to present - H1B
May 2005 - Official MS graduation.(I had paper presentation left. This caused a delay in my graduation).

My Labor was filed in EB2 category with Masters + 3 yrs experience. Could my OPT exp & H1B exp(before graduation) be counted towards this 3 years?

[vin13]

Originally Posted by harinim

Hi all,

The following is my status

Jan 2004 to Dec 2004 - OPT
Jan 2005 to present - H1B
May 2005 - Official MS graduation.(I had paper presentation left. This caused a delay in my graduation).

My Labor was filed in EB2 category with Masters + 3 yrs experience. Could my OPT exp & H1B exp(before graduation) be counted towards this 3 years?

Yes, you can count OPT and H1-B exp before graduation. if they are relevent exp why not. Exp need not be only the ones after your MS.

[wandmaker]

Originally Posted by harinim

Hi all,

The following is my status

Jan 2004 to Dec 2004 - OPT
Jan 2005 to present - H1B
May 2005 - Official MS graduation.(I had paper presentation left. This caused a delay in my graduation).

My Labor was filed in EB2 category with Masters + 3 yrs experience. Could my OPT exp & H1B exp(before graduation) be counted towards this 3 years?

You should have 3 years of experience from the date of graduation at the time of filing your PERM labor, any experience gained before the graduation is not accounted for GC purposes but for H1B it will be.

[rockstart]

Is your OPT experience with the same employer who has filed your GC? If yes then it might not be counted.

[vin13]

wow! there seems to be conflicting answers.

This is what i believe.

1) You cannot use any experience gained at the employer who is sponsoring your GC.

2) Experience obtained before graduating can be counted.

Some may have experience in their home country which could also be used. Not everyone goes straight to MS after finishing their BS. they may work for a few years. That does not mean that experience has no value.

[rockstart]

For Q1) Yes experience gained at the employer filing GC cannot be counted it does not sound logical but unfortunately that is how USCIS wants us to play.

Q2) Here I think we have some logic. Job says MS + 3 Yrs so CIS expects that the guy should have gained experience of 3 years AFTER you finished your Masters. The reason after is important is because this work experience used your knowledge you gained in MS degree. Now if you did not graduate then CIS can interpret that your school thought you were still lacking some skills and because of that they were reluctant to let you graduate and so experience you gained in this period did not use your MS skills ( to full extent).

Just a guess but there will be questions raised in I 140 stage that will need answeing. Say labor said BS + 3 then you could have shown the post BS experience including OPT experience ( except as in Q1)

Originally Posted by vin13

wow! there seems to be conflicting answers.

1) You cannot use any experience gained at the employer who is sponsoring your GC.

2) Experience obtained before graduating can be counted.
That does not mean that experience has no value.

[hsingh82]

Since you got your H1B approval before graduation, did you get it in Masters quota or general quota? The reason I am asking this is because one of my friends, got H1 in general quota, is told by his attorney that he can't file EB2 for him as his LCA approval is based on his undergraduate( didn't have 5 yrs experience) . Just check with your attorney.

[harinim]

Thank you for all responses.

My H1B applied under Masters Quota.

And I joined my current employer in May 2007. I was with a different employer before that.

My H1b is valid until Jan 2011 and in order to be eligible for my 7th year extension (just in case I-140 is denied) will it be ok to file another labor in Eb3 category?

[vin13]

Originally Posted by hsingh82

Since you got your H1B approval before graduation, did you get it in Masters quota or general quota? The reason I am asking this is because one of my friends, got H1 in general quota, is told by his attorney that he can't file EB2 for him as his LCA approval is based on his undergraduate( didn't have 5 yrs experience) . Just check with your attorney.

The job offered for Green Card could be different from the one offered for H1-B. Then you may still qualify for EB-2

some individuals are even converting from EB-3 to Eb-2 and retaining their priority date.

[rockstart]

This information is absolutely false. I got my H1 before I graduated. H1 from Oct 2004 graduated Dec 04. GC process filed in Jan 06 and I am in EB2. If I have MS before Jan 06 when labor was filed I qualify for the job post. But say there was a preapproved labor of say Jan 04 then perhaps I might not have been able to justify that one since I graduated in Dec 04. But what quota H1 was applied does not affect the GC process.

Originally Posted by hsingh82

Since you got your H1B approval before graduation, did you get it in Masters quota or general quota? The reason I am asking this is because one of my friends, got H1 in general quota, is told by his attorney that he can't file EB2 for him as his LCA approval is based on his undergraduate( didn't have 5 yrs experience) . Just check with your attorney.

[krishnam70]

Originally Posted by rockstart

This information is absolutely false. I got my H1 before I graduated. H1 from Oct 2004 graduated Dec 04. GC process filed in Jan 06 and I am in EB2. If I have MS before Jan 06 when labor was filed I qualify for the job post. But say there was a pre-approved labor of say Jan 04 then perhaps I might not have been able to justify that one since I graduated in Dec 04. But what quota H1 was applied does not affect the GC process.

You might get some RFE ..
Any information given out by others is also probably based on some precedent just like you. Let us present the options and leave the choice to the poster.

To the poster
I guess you have few options to ponder, may be its worth while to put an application in EB3 as well just in case. If the USCIS uses the strict interpretation then they will apply it as MS + 3 yrs which will technically make you in eligible since you did not graduate before

-cheers
kris

[vin13]

Originally Posted by krishnam70

You might get some RFE ..
Any information given out by others is also probably based on some precedent just like you. Let us present the options and leave the choice to the poster.

To the poster
I guess you have few options to ponder, may be its worth while to put an application in EB3 as well just in case. If the USCIS uses the strict interpretation then they will apply it as MS + 3 yrs which will technically make you in eligible since you did not graduate before

-cheers
kris

Where can we find the strict interpretation rule that the experience has to be after the masters degree?

[Ramba]

Originally Posted by vin13

Where can we find the strict interpretation rule that the experience has to be after the masters degree?

Peoples are confusing the poster.

There was one memo in 1999/2000 regarding EB2 eligibility, that remains still valid. If a job requires a MS+3years experience, the both (education and experience) requirements should have been obtained by the alien before filing LC. This is the only main requirement must be met. The experience need not be necessarly post-MS degree, unless employer specifically mention in LC application. Therefore, it can be very well before obtaining MS. If USCIS, doubts the requirement of experience (whether it is post MS experience or Pre-MS), they should issue a RFE to employer to confirm it. Based on the reply from employer they should adjudicate the 140. There are few exceptions. Few jobs, for example, professors in college, the experience should only after attainging PhD/MS.

This should not be confused with BS+5years experince requirement for EB2. In this case, the experience should be only be progressive and must be post-baccalurate degree.

Read this get more knowledge..
http://frwebgate.access.gpo.gov/cgi-...d=fr03jy00-111

[krishnam70]

Originally Posted by Ramba

Peoples are confusing the poster.

There was one memo in 1999/2000 regarding EB2 eligibility, that remains still valid. If a job requires a MS+3years experience, the both (education and experience) requirements should have been obtained by the alien before filing LC. This is the only main requirement must be met. The experience need not be necessarly post-MS degree, unless employer specifically mention in LC application. Therefore, it can be very well before obtaining MS. If USCIS, doubts the requirement of experience (whether it is post MS experience or Pre-MS), they should issue a RFE to employer to confirm it. Based on the reply from employer they should adjudicate the 140. There are few exceptions. Few jobs, for example, professors in college, the experience should only after attainging PhD/MS.

This should not be confused with BS+5years experince requirement for EB2. In this case, the experience should be only be progressive and must be post-baccalurate degree.

Read this get more knowledge..
http://frwebgate.access.gpo.gov/cgi-...d=fr03jy00-111

I agree It all depends on the way the advertisement was given. If the LCA ad says MS + 3 years of progressive experience it might be feasible to claim. But it must be specifically mentioned in the LCA. 'Vin13' I hope your doubt is cleared now. The burden of proof lies with the applicant.

- cheers
kris

[vin13]

Originally Posted by krishnam70

I agree It all depends on the way the advertisement was given. If the LCA ad says MS + 3 years of progressive experience it might be feasible to claim. But it must be specifically mentioned in the LCA. 'Vin13' I hope your doubt is cleared now. The burden of proof lies with the applicant.

- cheers
kris

ARE YOU KIDDING ME????

A TYPICAL JOB ADD DOESNOT SAY "MS + 3 years of progressive experience".

SO DO NOT CONFUSE PEOPLE WITH YOUR EARLIER INTERPRETATION.

I had to question you to prove it.

I agree with what Ramba has posted.