Promotion during labor stage from engineer

[pooch]

Hi,

I am in a peculiar situation. This is URGENT.

Background
1) My employer applied for my non RIR (PD Feb'04; EB2; India). This was for an engineering postion. This went into backlog reduction center ...
2) In 2005, I was promoted to a section manager. My attorney mentioned that as long as 50%+ job duties are the same, my non RIR filed for an engineer can still be used for section manager.
3) Due to backlog reduction and availability of PERM and no retrogression for a short period, a PERM labor was initiated (PD Apr'06 EB2;Approved May'06;India). Due to retrogression, I couldnt apply for I-485 but due to the July'07 bulletin, I applied for I-485, AP, EAD etc.
4) BOTH THE COMPANY AND MY LAWYER WERE AWARE OF BOTH LABOR PETITIONS SINCE 2004 until NOW.

Now (Aug-07), the backlog reduction center has finally asked my lawyers to proceed with the non-RIR
1) The legal team from my company has changed and currently does not recommend going with both non RIR and PERM. They want me to drop non RIR.
2) My lawyers are ok with going for both. They have made it clear that it is legally possible
3) The HR team in my company wants to advertise for my new position only (manager) since my "old engineering job" is no longer available. My lawyers want to advertise for the engineering position (which is the old position based on non-RIR).

I still want to go back to the old nonRIR due to the 26 month lead in priority date. I have slogged for my company for 6+ years and dont want to lose my priority date.

Does anyone have any experience with promotion during labor stage. My internal legal team claims that someone in my company/lawyer dropped the ball and gave me wrong advice of going to both non-RIR and PERM... They claim that Promotion from one individual contributor to another may be ok but from individual contributor (engineer) to a manager may not be ok.

Pls. help.

Pooch

[pooch]

Would a demotion to engineer help me retain my priority date?

Thanks
Pooch

[pooch]

Tom, thanks for the quick response... the w2 wage is greater than the wage specified in the labor form. I do not understand the company profit part. My company is a public company (1000+ employees) and makes profit during some quarters and loss during others ...

Thanks
Pooch

[americandesi]

Originally Posted by tom

As far as the company has an open position for these 2 job titles at the time the GC is approved and that you are ready to join for those positions, you can proceed with both. GC is for a future job and not for a current job. How ever, make sure your w2 + company profit > the wage specified in labor from the date the labor is applied.

A small correction. He's fine as long as one of the following is satisfied

w2 >= the wage specified
(or)
company profit >= the wage specified
(or)
company Assets >= the wage specified
(or)
No. of employees >= 100

Refer Yates Memo
http://www.visaportal.com/downloads/...20to%20pay.pdf

[silvernano13]

Points of Interest.