PERM re-filing under EB2 (family relationship in the company)

[vopatel]

I am working in a company in which my brother is a partner. Company has two partners including my brother and two other employees including me. I have I-140 priority date set by x-employer under EB3. Current lawyer firm said I can use the same priority date for filing under EB2. The present company filed for PERM which says it exceeds minimum SVP. I have Masters degree in Computer Science from USA and around 10 years of experience in IT and persently working on third party consulting project with fortune-100 company.

While filing for PERM, company forgot to check 'yes' for family relationship between owner and alien. Some of papers filed with government shows that my brother is an officer in the company. It has been six months since they filed for PERM. Now lawyer says that if my company has to re-file for PERM with correct information about family ownersihp, otherwise company would face civil/criminal penalties.

Lawyer keeps saying that there will be an audit most probably as we have said it exceeds minimum SVP (we have filed under EB2) and she is not much confident about clearing the audit based on the following facts

1) Company has only four people. Two partners and two employees. None of them has Masters degree
2) No H1B/GC history before
3) Family relationship

Now I have three options.

1) Stick with current company. They advertise for job again (since advertisement too old now) and re-file for PERM again. Wait for audit and if after audit, PERM is declined, re-file under EB3.
2) Switch to the lawyer who is more positive/supportive. Helps us in proceeding with the case without re-filing and if we are ready to provide all the papers, help us in clearing possible PERM audit. (This well-established American lawyer firm now insists on charging per hour bases in consulting futher in addition of what we already paid in legal fees for H1B and PERM)
3) Change the employer and start with another company who is ready to transfer my H1B. I have already been contacted by many Indian consulting firms who are ready to transfer my H1B under current project which is ending in July 2011.


I really would appreciate any advice. It is too stressful to keep evaluating options by concentrating all the time and energy into this case.

[gk_2000]

just my opinion:
I had researched this topic a bit in the past, as to how can I start my own company and sponsor my own h1. I found out that a person can't have more than 5% (or something like that) stake in the company in which he is employed. And I suspect there is also something against family member running the company.
Of course, a lawyer would have a better opinion. But just lending my 0.02