Porting EB3 to EB2 with Same employer

[gnanap]

Hi All,
I am planning to port my eb3 to eb2 application.

Unfortunately I (having bachelor degree with 16 yrs education) was NOT having 5 yrs of experience (fell short 3 months) before joining the current employer so we had to filed it in EB3.

Currently I have gained 7 yrs of experience in the current employer. With total 12 yrs of experience, is it possible to file my Labor/GC application in EB 2 in different role/title (may be manager or something different) with the same employer (by using the experience gained in the current employer). My employer has promised me that he will provide any support (paper work) required this.

Please advice me if this is going to work or NOT.

I have seen the following thread where someone has ported eb3 to EB2 with same employer by putting the experience in the current employer.

http://immigrationvoice.org/forum/fo...-employer.html (Eb3-Eb2 porting 140 approved same employer)

Please let me know.
Thanks!
Prakash

[Robert Kumar]

To my observation and understanding, there is a lots of risk in a case like this, with same employer including very high chance for audits, as I realized this from the other thread about 1-2 months back. New employer may be ok, but with same, there seems to be lots of headache as my employer also said, and is not doing it.
Sorry, I wish I could be more positive, but its purely based on informations from lawyers and threads here.

[Sachin_Stock]

Originally Posted by gnanap

Hi All,
I am planning to port my eb3 to eb2 application.

Unfortunately I (having bachelor degree with 16 yrs education) was NOT having 5 yrs of experience (fell short 3 months) before joining the current employer so we had to filed it in EB3.

Currently I have gained 7 yrs of experience in the current employer. With total 12 yrs of experience, is it possible to file my Labor/GC application in EB 2 in different role/title (may be manager or something different) with the same employer (by using the experience gained in the current employer). My employer has promised me that he will provide any support (paper work) required this.

Please advice me if this is going to work or NOT.

I have seen the following thread where someone has ported eb3 to EB2 with same employer by putting the experience in the current employer.

http://immigrationvoice.org/forum/fo...-employer.html (Eb3-Eb2 porting 140 approved same employer)

Please let me know.
Thanks!
Prakash

There's plentiful of similar cases and they all are greened. As a matter of fact, that's the ONLY way out for EB-3 folks to end their suffering.

[Sachin_Stock]

Originally Posted by snathan

Unfortunately it seems like EB2 is no go for you...

1. Same employer
2. From your information...the job requirement is not genuine.

If you file for EB2 and if there is an audit, you will also lose your EB3. Go for EB2 if you are ready to lose your EB3 as well in case of audit.

Misinformation campaign at its best

BTW, there are no audit process in EB-2 stage i.e at I-140. EB-3 case is unaffected, and a beneficiary is entitled to hold multiple I-140s.

[Sachin_Stock]

Originally Posted by snathan

Its not about multiple I-140s...its about the same employer and what has happened to the EB3 job as it was sold as a permanent job. If the person who recruited for that EB3 is moving to a new EB2...anyone has been recruited for the original EB3 permanent job or opened for other eligible candidate?. If not, was it a false informtion and amount to immigration fraud...?

More likely the EB2- I140 will go for audit...and this information is gathered from attorneys.

That's a VERY typical argument for those who oppose porting.

Do you realize that there's NO difference between a person changing from company A to company B (with different position), vs person changing a job position X to Y in same company?

And what exactly do you mean by EB-3 job being sold as permanent job? Where do you get this funny phrase from?

[snathan]

Originally Posted by Sachin_Stock

That's a VERY typical argument for those who oppose porting.

Do you realize that there's NO difference between a person changing from company A to company B (with different position), vs person changing a job position X to Y in same company?

And what exactly do you mean by EB-3 job being sold as permanent job? Where do you get this funny phrase from?

I am not opposing porting in anyway...again one is free to chose whats appropriate for them. If you do not understand the funny pharse google the meaning and requirement of GC process...

GC and porting should be based on the Job and employer requirement and not based on the employee’s requirement. There is no category in GC for sympathy

[Sachin_Stock]

Originally Posted by snathan

I am not opposing porting in anyway...again one is free to chose whats appropriate for them. If you do not understand the funny pharse google the meaning and requirement of GC process...

Oh don't you worry about that. If they CAN, they WILL. Simple as that. Throwing all those funny jargons completely devoid of legal terminology, and legal backing, is not going to solve your sole purpose here, which is to deter or dampen the spirit of porting.

GC and porting should be based on the Job and employer requirement and not based on the employee’s requirement. There is no category in GC for sympathy

And who disputes that? The question of thread starter was simple. If porting is allowed in same company, to which I replied yes. Please refer Yates Memo before you make any suggestions.

[snathan]

Originally Posted by Sachin_Stock

Oh don't you worry about that. If they CAN, they WILL. Simple as that. Throwing all those funny jargons completely devoid of legal terminology, and legal backing, is not going to solve your sole purpose here, which is to deter or dampen the spirit of porting.



And who disputes that? The question of thread starter was simple. If porting is allowed in same company, to which I replied yes. Please refer Yates Memo before you make any suggestions.

One does not need sprit to Port...all they need is a genuine job requirement.

If you are looking to pick up fight..good luck with that. I am not saying one can not port with the same employer...all I am saying - There is risk involved. If you dont understand that read the post again and again until you understand. May be if you are in week end mood, come back Monday and read it.

[Sachin_Stock]

Originally Posted by snathan

If you are looking to pick up fight..good luck with that. I am not saying one can not port with the same employer...all I am saying - There is risk involved. If you dont understand that read the post again and again until you understand. May be if you are in week end mood, come back Monday and read it.

Sorry, if I sounded that way. There's no risk involved. You need to be very clear on what sort of risk you are talking about.

Your argument was that the EB-3 position being 'sold' was wrong. Please provide sources if you can. If an EB-3 position existed years ago, and if the beneficiary choses to go for another Eb-2 position, that doesn't mean that it voided the earlier one. Statement fallacy. Even a new labor is invalid after 6 months.

[snathan]

Originally Posted by Sachin_Stock

Sorry, if I sounded that way. There's no risk involved. You need to be very clear on what sort of risk you are talking about.

Your argument was that the EB-3 position being 'sold' was wrong. Please provide sources if you can. If an EB-3 position existed years ago, and if the beneficiary choses to go for another Eb-2 position, that doesn't mean that it voided the earlier one. Statement fallacy. Even a new labor is invalid after 6 months.

There was another thread which discussed about this very much and there was a link to the blog posted by someone. I also have checked about the auditing with reliable source who has very good contact with top attorneys’. The answer is - the chances for auditing are very high if you are doing with the same employer.

Couple of years back if you have done the porting, there was no questions asked. But now there is lot of chances for auditing if you are porting with the same employer - .

I don’t have anything personally against porting as long as there is no fraud involved.



I will post the link to that blog when I get time as I need to search that.

[Robert Kumar]

Porting is a big decision with same or different employer. I have checked with one of the top three law firms, and in cases we do with same employer, with that 50% job responsibilites change situaiton, the attorney said INS looks at it as mostly not genuine, and needs lots of documentation, and as snathan said, other justifications may be needed.
You dont have to agree with him or me.
Just go and check with some reputed lawyer and please post us your finds. Its possible we may be wrong, and I really wish so. I am also in the same boat as you are and I'm failing to convince my employer.
See my posts. Even I tried hard, but no light..

[Sachin_Stock]

Originally Posted by snathan

There was another thread which discussed about this very much and there was a link to the blog posted by someone. I also have checked about the auditing with reliable source who has very good contact with top attorneys’. The answer is - the chances for auditing are very high if you are doing with the same employer.

Couple of years back if you have done the porting, there was no questions asked. But there is lot of chances for auditing if you are porting with the same employer.

I don’t have anything personally against porting as long as there is no fraud involved.



I will post the link to that blog when I get time as I need to search that.

Quite contrary, its much safer to do it with the same employer. Vast majority of the porting cases are with same employer.

The only clause is, the Eb-2 job position should be considerably different Eb-3. Now if a person has worked in same firm for more then FIVE years, I would assume that he indeed must have progressed.

[snathan]

Originally Posted by Sachin_Stock

Quite contrary, its much safer to do it with the same employer. Vast majority of the porting cases are with same employer.

The only clause is, the Eb-2 job position should be considerably different Eb-3. Now if a person has worked in same firm for more then FIVE years, I would assume that he indeed must have progressed.

See...I just shared the information what I know. I may be right or wrong as I didnt spend much time to research. If you are able to port it...please do it and share your experience with us. Good luck

[Robert Kumar]

Originally Posted by Sachin_Stock

Quite contrary, its much safer to do it with the same employer. Vast majority of the porting cases are with same employer.

The only clause is, the Eb-2 job position should be considerably different Eb-3. Now if a person has worked in same firm for more then FIVE years, I would assume that he indeed must have progressed.

I also read both EB3 and EB2 will go in parallel and both will be safe.
But if INS asks about the future position of EB3, what should the company say. Its no more, or its still there.
If its still there, then will the same candidate do that job and the EB2 job. Please check with your attorney on this also. I'm tired myself.

[snathan]

Originally Posted by Sachin_Stock

Quite contrary, its much safer to do it with the same employer. Vast majority of the porting cases are with same employer.

The only clause is, the Eb-2 job position should be considerably different Eb-3. Now if a person has worked in same firm for more then FIVE years, I would assume that he indeed must have progressed.

Originally Posted by NYCBrown

I am working on EAD which I received from my EB3 category(labor date - Oct, 2004). My new employer filed a new application for EB2 category in Nov, 2010, my labor got approved within 3 months and they went for the next step filing my I-140 PETITION. They attached my previous I-140( from Eb3 category) along with the new application seeking to port the old priority date. Here is the REF which they received on 23, March 2011.

"Please provide evidence to show that the petitioner will be employing the beneficiary to fill the specific vacancy. In addition, provide a detail description of the work to be performed, including specific job duties, level of responsibility and number of hours per week of work to be performed.
You must sumbit the requested information within 30 days from the date of this letter. Failure to do so may result in the denial of your petition"


Please suggest. My attorney is working on this.

Just posted by some one else who has ported with different employer. If I understand it right they want to know how the EB3 vacancy is going to be filled once the person moved to the EB2 job (Otherwise I am not sure why they need proof for EB2 job). Its for new employer....imagine what they would ask if its the same employer.