PDA

View Full Version : EB3 to EB2 and on-the-job work experience question


latbsol
02-25-2010, 02:23 AM
I have been working with my current employer for the last 5 years in job title
A (Software Engineer), which wasn't qualified for EB2. But now I will be been promoted to a significantly different job title and responsibilities B (Research Scientist), with the same employer and The requirements for that position are a Masters degree with
one year of experience. Does this qualify for a EB2 ? Does EB2 require managerial
experience i.e. should you be managing people or is that not a requirement? The employer will later file for a PERM labor in EB2.

For the purpose of EB2 labor for the new position, I need to show 1 year of
work experience.

Question: Would I be able to use/show the work experience I
gained when I was working in job title A with the same employer? i.e. Will I
be able to use on-the-job work experience that I gained before I was promoted
to the new position? Remember, the current job title B (for which EB2 labor is
being filed) and requirements are significantly different from the previous job
title A and requirements (which only qualified for a EB3). Have anyone got their
labor approved in EB2 with work experience from the same employer? Are there any
USCIS published documents that coult clarify this?

I have my I-140 approved in EB3 and I have also filed for 485. Assuming the EB2
labor certification gets approved, could I re-capture my EB3 Priority Date? If so,
what is the exact procedure for doing that?

Is the attempt to process my labor in EB2 completely independent of my
existing EB3 labor and I-140? Will a denial of EB2 labor affect my existing
EB3 approved labor and I-140?

Thanks much for your time in helping clarify this.

jamesingham
02-25-2010, 09:31 AM
As far as I know, Your new EB2 labor is completely independent of your approved EB3 petition. While your EB2 is in process or even if it is denied you can still fall back on your EB3 to get your 3 year H1 renewals and avail other benefits of approved petition. This is what the attorney told my employer.

Coming to the question of whether you can use your on the job experience towards EB2, the answer doesn't seem to be consistent. My company's attorney tells us that is possible and there is a 90 % chance of approvals and 10% chance of denials.

At the same time, I have seen different views from members of this forum.

latbsol
02-25-2010, 12:19 PM
Hey, thanks for the feedback and clarifications. Good to know that my EB2 will not affect the existing EB3. Yeah, I agree things are kind of grey when it comes to using the on-the-job work experience. I guess it depends on individual circumstances and there is no certainity about what will apply where.

It would be really nice if the USCIS publishes some clear written material on these rules and regulations, like a FAQs that answers the most nagging questions someone has about Employment Based immigration. Does something like that exist? Does anyone know?

Thanks

hebron
06-22-2010, 03:01 PM
Hey, thanks for the feedback and clarifications. Good to know that my EB2 will not affect the existing EB3. Yeah, I agree things are kind of grey when it comes to using the on-the-job work experience. I guess it depends on individual circumstances and there is no certainity about what will apply where.

It would be really nice if the USCIS publishes some clear written material on these rules and regulations, like a FAQs that answers the most nagging questions someone has about Employment Based immigration. Does something like that exist? Does anyone know?

Thanks

HI latbsol, Just curious, did you file EB2 with the same employer?

veni001
06-22-2010, 03:44 PM
Make sure your LCA and H1B will be amended with the promotion first....

I have been working with my current employer for the last 5 years in job title
A (Software Engineer), which wasn't qualified for EB2. But now I will be been promoted to a significantly different job title and responsibilities B (Research Scientist), with the same employer and The requirements for that position are a Masters degree with
one year of experience. Does this qualify for a EB2 ? Does EB2 require managerial
experience i.e. should you be managing people or is that not a requirement? The employer will later file for a PERM labor in EB2.

For the purpose of EB2 labor for the new position, I need to show 1 year of
work experience.

Question: Would I be able to use/show the work experience I
gained when I was working in job title A with the same employer? i.e. Will I
be able to use on-the-job work experience that I gained before I was promoted
to the new position? Remember, the current job title B (for which EB2 labor is
being filed) and requirements are significantly different from the previous job
title A and requirements (which only qualified for a EB3). Have anyone got their
labor approved in EB2 with work experience from the same employer? Are there any
USCIS published documents that coult clarify this?

I have my I-140 approved in EB3 and I have also filed for 485. Assuming the EB2
labor certification gets approved, could I re-capture my EB3 Priority Date? If so,
what is the exact procedure for doing that?

Is the attempt to process my labor in EB2 completely independent of my
existing EB3 labor and I-140? Will a denial of EB2 labor affect my existing
EB3 approved labor and I-140?

Thanks much for your time in helping clarify this.

jamesingham
06-22-2010, 05:20 PM
Mine is the same company that applied for EB2 in the first place

hebron
06-23-2010, 09:25 AM
Mine is the same company that applied for EB2 in the first place

Thanks Jamesingham, Did you get your PERM approval? When you applied for EB2 with the same employer that filed your EB3, were your job descriptions atleast 50% different?

Thanks.

jamesingham
06-23-2010, 09:59 AM
No not yet. Attorney says I will get it in October of this year. He also said PERM is going to be no problem .. problem may arise when we apply for EB-2 140.

Yes, the responsibilities are 50% different than my previous job.

latbsol
10-01-2010, 07:03 PM
Hi guys,

Sorry, I was absent for a long time. I am back now!

@ Hebron:
Yes, I am planning to file the EB2 with the same employer. Of course that is what prompted my questions in the first place.

@ veni:
Thanks for the suggestion. Yes, my employer applied for the H1B amendment and LCA and got them approved. So I hope that is good.

@ JamesSingham:
James, is your case the same as mine? i.e. you converted from EB3 to EB2 with the same employer (for a different job title & responsibilities) and are using the experience you gained with the same employer? Have you filed for EB2 PERM already? What is the current status? BTW how do we prove that the job responsibilities are 50% different. Obviously reading the EB3 job description and EB2 job description should make it clear. But I guess the DOL expects some formal proof about this? What kind of documents/letters/evidence has your current employer included in your application to prove that the two positions are > 50% different? Is there a standard procedure for doing this? Too many questions...sorry. But I hope you understand my situation :(. Please provide you responses. That will greatly help.