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isthereawayout
02-22-2011, 12:30 PM
I am trying to port from EB3-EB2 from the same employer.

Prior to joining the employer, I had MS+2 years of experience. However, the lawyer applied in EB3. The job description read:

Required: BS+3
MS+1 also accepted
Experience in technologies A,B,C,D

I applied based on my MS+1 experience. Now the same company has another position with a very similar job description with a different title.

Required:MS+1
Experience in technologies A,B,C,D

Q1. Would this qualify for a EB2 position? Do I have to worry about the job descriptions being almost similar
Q2. The titles are different. But the EB2 position doesn't have "Senior" in the position title. Is there a need to worry?

Any replies are really appreciated.

snathan
02-22-2011, 12:41 PM
I am trying to port from EB3-EB2 from the same employer.

Prior to joining the employer, I had MS+2 years of experience. However, the lawyer applied in EB3. The job description read:

Required: BS+3
MS+1 also accepted
Experience in technologies A,B,C,D

I applied based on my MS+1 experience. Now the same company has another position with a very similar job description with a different title.

Required:MS+1
Experience in technologies A,B,C,D

Q1. Would this qualify for a EB2 position? Do I have to worry about the job descriptions being almost similar
Q2. The titles are different. But the EB2 position doesn't have "Senior" in the position title. Is there a need to worry?

Any replies are really appreciated.

Title alone will not make you to qualify for EB2. You need to worry about porting with the same employer as it might invite audit (most likely) and there are other consequences also to worry about.

Check with your HR - What category they are filing for the new job EB2/EB3
If EB2 ask them - Why did they file EB3 for you for the same position.
If EB3 - There is no point in porting.

isthereawayout
02-22-2011, 12:46 PM
Its not exactly the same position. As you can see the requirements are slightly different.

sidbee
02-22-2011, 01:37 PM
I am not a lawyer , and this is not a legal advise.

According to my study , and talk with some lawyers .. Yes it could be same.

But if the Job description is same (not more than 50% different) , then u cannot use the experienced gained in the previous job with the same employer.

Eg .

You had 7 years of experience , and u worked as a software engineer (which required BS + 3 years of exp in c), and Ur company filed Ur GC in eb3.

Now u get promoted to Senior Software Engineer (which required BS + 6 years of exp in c),Now if u had 6 years of exp in c before joining this company in the previous job. you should be eligible to file in EB2 based on Ur previous work ex.

Talk to Ur attorney about the points i mentioned.

isthereawayout
02-22-2011, 01:42 PM
Yes, in my case we wouldn't be using the experience gained with the current employer as I already have the required 1 year experience before joining the employer.

My fear is that DOL/USCIS would come back and say hey you have almost the same requirement for both the positions, why does one require only MS+1 while the other accepts BS+3..

snathan
02-22-2011, 02:00 PM
Yes, in my case we wouldn't be using the experience gained with the current employer as I already have the required 1 year experience before joining the employer.

My fear is that DOL/USCIS would come back and say hey you have almost the same requirement for both the positions, why does one require only MS+1 while the other accepts BS+3..

Its a valid point. If its more or less the same description of the job...you will have hard time to convince the USCIS. Most likely the PERM will be approved and you will face issues during EB2 - I-140.

isthereawayout
02-22-2011, 02:47 PM
snathan - How different is different enough for USCIS/DOL to be okay with it? Would the num of years of experience be helpful if it was different.

I guess I am trying to figure out if I should let go of this position and wait for another one to come around if it's the current one is not worth pursuing due to potential issues during I140 stage.

Thanks

forgerator
02-22-2011, 02:55 PM
I am trying to port from EB3-EB2 from the same employer.

Prior to joining the employer, I had MS+2 years of experience. However, the lawyer applied in EB3. The job description read:

Required: BS+3
MS+1 also accepted
Experience in technologies A,B,C,D

I applied based on my MS+1 experience. Now the same company has another position with a very similar job description with a different title.

Required:MS+1
Experience in technologies A,B,C,D

Q1. Would this qualify for a EB2 position? Do I have to worry about the job descriptions being almost similar
Q2. The titles are different. But the EB2 position doesn't have "Senior" in the position title. Is there a need to worry?

Any replies are really appreciated.

isthereawayout, you and I are in exactly the same situation.

In my case , back in 2007, I was filed under EB3 for a Software Developer position, even though I had MS + 2yr exp. However the job was such that it required Bachelor + 2yr so it was filed under EB3.

Last year, I got promoted to Senior Software Developer. Employer is filing me under EB2 this time, and will use same experience as the one from EB3 , i.e. MS + 2 yr exp. However this time the job is such that it requires Bachelor + 5 yr.

The only difference I believe is the Job description of the posting itself. In that, they have requested experience in technologies which are different from the ones listed in my EB3 job description.

Hope that answers your question.

HRPRO
02-22-2011, 03:10 PM
snathan - How different is different enough for USCIS/DOL to be okay with it? Would the num of years of experience be helpful if it was different.

I guess I am trying to figure out if I should let go of this position and wait for another one to come around if it's the current one is not worth pursuing due to potential issues during I140 stage.

Thanks

One more thing to take ino consideration is during the audit, along with your HR department DoL will review similar jobs within your organisation and check the requirements for those jobs. They will have to be similar, else you will have an issue.

isthereawayout
02-22-2011, 03:22 PM
forgerator - Can you please check your PM?