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ak_2006
02-20-2011, 09:47 PM
My EB2 application with same company of EB3 got an audit for recruitment process. How much time DOL taking to take decision on PERM audit replies these days? Will it effect my EB3 case?
Thanks in advance for your input.

snathan
02-20-2011, 10:36 PM
My EB2 application with same company of EB3 got an audit for recruitment process. How much time DOL taking to take decision on PERM audit replies these days? Will it effect my EB3 case?
Thanks in advance for your input.

I dont have the answer for Q -1

Q -2 : There are lot parameters you will have to consider. Are you working for End client or consultancy. If the EB2 process was done based on the Employer requirement, you are moved to different position and the original EB3 job was opened up for other people, all the process is well documented, than you are fine.

If you are working for consulting company, if you have convinced your employer to file EB2 and the EB3 was not opened up for other people, your EB3 is in trouble. Remember the job will be available up on approval of the GC. Now if you are moved to another EB2 position, the EB3 must be opened for other people. If not the job offer was not genuine and your EB3 will be questioned. It’s all depend how genuine the EB2, how all the process is documented and competency of the attorney who is handling this.

EB3-EB2 porting is no longer a walk in the park. As more people started porting, USCIS started auditing process on most of the porting cases. One need to carefully consider all the factors before going for it. Good luck.

Robert Kumar
02-21-2011, 07:46 AM
snathan,

In this case are you saying like when EB2 is filed in porting case, then it is very important that the EB3 position for future is maintained and hence ads etc must be given to get somebody else to fill that position. I agree with you on the point that the position is for future in any case. Hence unless we somehow tell INS that the position is still there, even after changing to EB2, I guess EB3 is definitely in trouble. I dont think we can say "give me EB2 now, else leave my EB3 unharmed". It looks to be more problem here, and not sure how carefully lawyers are handling this one.

snathan
02-21-2011, 10:49 AM
snathan,

In this case are you saying like when EB2 is filed in porting case, then it is very important that the EB3 position for future is maintained and hence ads etc must be given to get somebody else to fill that position. I agree with you on the point that the position is for future in any case. Hence unless we somehow tell INS that the position is still there, even after changing to EB2, I guess EB3 is definitely in trouble. I dont think we can say "give me EB2 now, else leave my EB3 unharmed". It looks to be more problem here, and not sure how carefully lawyers are handling this one.

If its not documented properly...what lawyers can do...

getgreensoon
02-21-2011, 11:18 AM
If its not documented properly...what lawyers can do...

I am glad that the department of labor finally woke up and is now auditing all these fradulent porting cases.

kumar1
02-21-2011, 11:27 AM
Your comments are not responsible. I know I can not change your views so I will not even try doing that. I am an example of EB3 to EB2 porting case. I was screwed by my employer(s) and attorneys. They filed my case under EB3 knowing the fact that that position was qualified for EB2 and I was also qualified for EB2. Well, nothing is a cake walk in this life. I changed jobs, hired different attorney, waited for another two years, spent almost 10,000 US dollars and got GC under EB2.

"Jahaan Chaah wahaan raah." If thre is a will, there is a way. There is nothing fraud about it.


I am glad that the department of labor finally woke up and is now auditing all these fradulent porting cases.

nogc_noproblem
02-21-2011, 11:43 AM
Not sure how much time DOL is taking these days, also not sure whether there is any hard and fast rule that relevant EB3 is needs to be touched when your EB2 is audited. But in a similar scenario my colleague had problem for his EB3 as well. I think it is due to EB3 to EB2 move within the same company. The kind of documents asked for are simply absurd (first for EB2 and then for EB3), my company (big 4) said that there is no way they can provide all the information. He was working with EAD at that time and he had to leave the company and country (it happened during 2010). Not sure whether it is purely up to the adjudicating officer or they have some guidelines to follow.

My EB2 application with same company of EB3 got an audit for recruitment process. How much time DOL taking to take decision on PERM audit replies these days? Will it effect my EB3 case?
Thanks in advance for your input.

snathan
02-21-2011, 12:05 PM
Not sure how much time DOL is taking these days, also not sure whether there is any hard and fast rule that relevant EB3 is needs to be touched when your EB2 is audited. But in a similar scenario my colleague had problem for his EB3 as well. I think it is due to EB3 to EB2 move within the same company. The kind of documents asked for are simply absurd (first for EB2 and then for EB3), my company (big 4) said that there is no way they can provide all the information. He was working with EAD at that time and he had to leave the company and country (it happened during 2010). Not sure whether it is purely up to the adjudicating officer or they have some guidelines to follow.

Seems like this trend started recently as more people started the porting. More over if you are still working with the same employer, itís exacerbating the situation.

Lot of people had done porting successfully and I was also advising couple of my friends for the same. But itís no long a walk in the park.

HRPRO
02-21-2011, 12:24 PM
DoL is taking almost a year to make a decision on cases that are going through an audit but nothing is written in stone and the time line varies.

To go from EB-3 to EB-2 the job that is being sought should have changed significantly and the experience gained prior to joining the current employer should support it too. Attorneys in most cases do not recommend making the switch.

Dont want to keep going on and on but like Nathan has commented if all documents are in place and proof can be shown that it is a genuine application, you have nothing to worry and also dont worry just for the reason you are being audited. Most cases which are being ported do get audited.

HRPRO
02-21-2011, 12:26 PM
Not sure how much time DOL is taking these days, also not sure whether there is any hard and fast rule that relevant EB3 is needs to be touched when your EB2 is audited. But in a similar scenario my colleague had problem for his EB3 as well. I think it is due to EB3 to EB2 move within the same company. The kind of documents asked for are simply absurd (first for EB2 and then for EB3), my company (big 4) said that there is no way they can provide all the information. He was working with EAD at that time and he had to leave the company and country (it happened during 2010). Not sure whether it is purely up to the adjudicating officer or they have some guidelines to follow.

nogc

We will continue to see these issues till the unemployment rate comes down and with more federal cuts coming, I am not sure what to expect.

rbusgc
02-21-2011, 12:38 PM
nogc

We will continue to see these issues till the unemployment rate comes down and with more federal cuts coming, I am not sure what to expect.

As long as your documents are good w.r.t labor processing there is nothing to worry. 95% off audit cases get approved eventually. 5% without sufficient documentation gets rejected and there is NO impact on your existing EB3 case.

snathan
02-21-2011, 01:41 PM
As long as your documents are good w.r.t labor processing there is nothing to worry. 95% off audit cases get approved eventually. 5% without sufficient documentation gets rejected and there is NO impact on your existing EB3 case.

This is not true anymore...USCIS coming after the EB3 application also as I have explained previously. Also we dont have any first hand experience . So it might be true or just rumor. But you never know...

rbusgc
02-21-2011, 03:16 PM
This is not true anymore...USCIS coming after the EB3 application also as I have explained previously. Also we dont have any first hand experience . So it might be true or just rumor. But you never know...

All these porting cases are people who are already in I485 que, and hence they are covered by AC21 rule.. so 'coming after EB3' is just a scare tactics.. check with your lawyer to be on the safer side and there is no way DOL is going to audit an EB3 which was approved 5 years (or more) back and going to prove that it was faulty.

snathan
02-21-2011, 03:22 PM
All these porting cases are people who are already in I485 que, and hence they are covered by AC21 rule.. so 'coming after EB3' is just a scare tactics.. check with your lawyer to be on the safer side and there is no way DOL is going to audit an EB3 which was approved 5 years (or more) back and going to prove that it was faulty.

Please go ahead and apply in EB2 and keep us posted. Where is the AC21 is coming into picture if you are porting with the same employer and how you are covered. Please elaborate.

Also care to explain what would happen to the original EB3... if the employee is moved to EB2. The GC process was started based on the promise the EB3 job is going to be there at the time of GC approval. What happened to that promise and how the job suddenly disappeared.

It might be true the 'Its a scare tactics'...but no one is sure about it. Deporting at Newark airport was also started as rumor, but it turned out to be ture.

So the best person would be the attorney to answer based on the company/job requirement.

Robert Kumar
02-21-2011, 04:06 PM
All these porting cases are people who are already in I485 que, and hence they are covered by AC21 rule.. so 'coming after EB3' is just a scare tactics.. check with your lawyer to be on the safer side and there is no way DOL is going to audit an EB3 which was approved 5 years (or more) back and going to prove that it was faulty.

How is it a scare thing. We are not changing employer here to talk about AC21. AC21 covers when we leave the EB3 employer to find a new one.
In the scenario we are discussing, we are not changing employer.
So if the question comes "what about EB3 position that was supposed to be upon approval", is it not there or what do we say.
Please check with your lawyer, and I'll check with mine also and post here. I am tired on getting a satisfactory answer to some questions when porting from EB3 to 2.
Unless its a very strong company in all aspects and everything in right order, I see a problem.

HRPRO
02-21-2011, 04:21 PM
All these porting cases are people who are already in I485 que, and hence they are covered by AC21 rule.. so 'coming after EB3' is just a scare tactics.. check with your lawyer to be on the safer side and there is no way DOL is going to audit an EB3 which was approved 5 years (or more) back and going to prove that it was faulty.

rbusgc

This is not scaring anyone but just reminding our brothern to take a cuatious approach and ensure no stones are unturned. Making a hasty decision now could be irrepairable in future.

rbusgc
02-21-2011, 04:36 PM
Please go ahead and apply in EB2 and keep us posted. Where is the AC21 is coming into picture if you are porting with the same employer and how you are covered. Please elaborate.

Also care to explain what would happen to the original EB3... if the employee is moved to EB2. The GC process was started based on the promise the EB3 job is going to be there at the time of GC approval. What happened to that promise and how the job suddenly disappeared.

It might be true the 'Its a scare tactics'...but no one is sure about it. Deporting at Newark airport was also started as rumor, but it turned out to be ture.

So the best person would be the attorney to answer based on the company/job requirement.


1. How AC21 comes into picture is... In a worse case scenario, you have the right to move on to a new job using EAD, you are not in trouble anymore with respect to your old labor/I140 (as long as I140 is approved 6 months back). Hope this clears the doubt.

2. Same asnwer as if the EB3 employee had left the organization after I140 was approved. Tell me what an employer would answer DOL in such a scenario? Employee deciding to leave the organisation once the I140 was approved by USCIS. Since the wiating period of Indians/Chinese are much more than regular/usual, this question itself doesnt come into picture! You cannot keep any organization accountable for a 'future' job when 'future' is beyond prediction. :-)

My point is simple and straight forward, any of the above discussed points should NOT STOP an EB3 from porting to EB2 as long as he is getting it done legally.

snathan
02-21-2011, 04:44 PM
1. How AC21 comes into picture is... In a worse case scenario, you have the right to move on to a new job using EAD, you are not in trouble anymore with respect to your old labor/I140 (as long as I140 is approved 6 months back). Hope this clears the doubt.

In the worst case scenario, you can save your job moving to different employer. But what about employer who has got into the mess because audit and other employees...?

2. Same asnwer as if the EB3 employee had left the organization after I140 was approved. Tell me what an employer would answer DOL in such a scenario? Employee deciding to leave the organisation once the I140 was approved by USCIS. Since the wiating period of Indians/Chinese are much more than regular/usual, this question itself doesnt come into picture! You cannot keep any organization accountable for a 'future' job when 'future' is beyond prediction. :-)

My point is simple and straight forward, any of the above discussed points should NOT STOP an EB3 from porting to EB2 as long as he is getting it done legally.

Thats the whole point we are talking about...if everything is documented properly, it should not be an issue.

The porting should be based on the employer requirement and not based on you are convincing the employer.

rbusgc
02-21-2011, 04:53 PM
>>>But what about employer who has got into the mess because audit and other employees...?

Audit is a PROCESS ... NOT A "mess". As long as your organization is operating legally (including in case of EB2/EB3 process) you are covered.

snathan
02-21-2011, 05:04 PM
>>>But what about employer who has got into the mess because audit and other employees...?

Audit is a PROCESS ... NOT A "mess". As long as your organization is operating legally (including in case of EB2/EB3 process) you are covered.


I asked you the question in the contest of 'Convincing employer to file EB2'...tell me many employers are ready for an audit from USCIS though they are genuine companies/even end client. Do you know how many companies are not hiring anyone on visa or not ready to sponsor GC? They are all legal entities and not ready to take the plunge with USCIS...because it not worth.

Tell your employer there will be a possibility of USCIS audit and see the reaction...it doesnt matter what kind of company it is.

Well...its upto the individual, employer and the attorney to decide. All we are saying is be prepare for the auditing process.

HRPRO
02-21-2011, 05:15 PM
Guys

In most cases when a request is made to port from EB-3 to EB-2, it is done by stating that significant responsibilities have been added to the job which now makes it qualify under the EB-2 category. This is why the EB-3 is audited as well, to verify and cross check all the factors that went in to assigning the SVP for the position and whether the additions qualisy the job for a different SVP and wether the DoL stats support the so called natural progression.

If it is a compeltely different position like moving from IT to Finance, then the initial petition will most likely not get audited as both are independent of one another.

Robert Kumar
02-22-2011, 07:43 AM
Guys

In most cases when a request is made to port from EB-3 to EB-2, it is done by stating that significant responsibilities have been added to the job which now makes it qualify under the EB-2 category. This is why the EB-3 is audited as well, to verify and cross check all the factors that went in to assigning the SVP for the position and whether the additions qualisy the job for a different SVP and wether the DoL stats support the so called natural progression.

If it is a compeltely different position like moving from IT to Finance, then the initial petition will most likely not get audited as both are independent of one another.

What if it is in the same lines. Let us say Software Analyst before in Java and related stuff, and now Senior Architect in same lines. Now the role is like manager level

kumar4875
02-22-2011, 09:44 AM
Can we get any attorneys opinion on this thread.

blacktongue
02-22-2011, 09:58 AM
USCIS should audit all labors all categories. System must strict implementation. No American found and then labor given. With 9% unemployment how application for Labor possible now? Something wrong.

Robert Kumar
02-22-2011, 11:05 AM
USCIS should audit all labors all categories. System must strict implementation. No American found and then labor given. With 9% unemployment how application for Labor possible now? Something wrong.

The unemployment rate you are talking about is US average. Not in IT.
Which domain do you work in, Housing or real estate or manufacturing?

maddipati1
02-22-2011, 11:37 AM
USCIS should audit all labors all categories. System must strict implementation. No American found and then labor given. With 9% unemployment how application for Labor possible now? Something wrong.

you are right. something is wrong. here it is,

9% of Americans don't have a job so give ur stupid job to one of them and get the hell out of here. makes sense?

u know what is wrong, how is an idiot who can't comprehend the fact that '9% overall US unemployment is still possible with shortage of IT people', is qualified for an EB1. yes, something is wrong here.

ryan
02-22-2011, 12:47 PM
>>>But what about employer who has got into the mess because audit and other employees...?

Audit is a PROCESS ... NOT A "mess". As long as your organization is operating legally (including in case of EB2/EB3 process) you are covered.

You are spot on that an Audit is a process. A due process that often cleans up a mess! So yeah, power to process of an Audit :)