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ay34521222

PERM Filing for First Job out of College

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i have a bachelors from a US univ and began working after graduation as a software engineer in a mnc. I am on h1b which started about 2 yrs ago. My employer wants to file a PERM application for EB3, but the company lawyers reached out to me and said the experience i had prior to joining the company wasnt good enough to make a successful application since they were largely internships. They said my on the job experience wont be counted as part of the application, and a software engineer beginner role was something that citizens can be hired for, therefore, i have a weak application. what are my options going forward? What help can i ask of my employer at this point in time? Thank you in advance for any advice provided

Edited by ay34521222

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So Is your question about moving from EB3 to EB2 or possibility of having application rejected because employer perceived it as "weak application"?

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My question is about the possibility of my application being rejected for being “weak”. The lawyers in my company are recommending against filing, so at this point I’m trying to understand my options.

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Not that I know a lot about weak versus strong application but it looks like for EB-3 you should be alright. There is nothing as weak application unless you make mistakes or missed send documents. You are what you are going to represent and there is nothing going to change significantly in such short time of H1b that will dramatically alter results. I think you are in good shape to apply.

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On 4/29/2019 at 9:55 AM, ay34521222 said:

My question is about the possibility of my application being rejected for being “weak”. The lawyers in my company are recommending against filing, so at this point I’m trying to understand my options.

If I were you , I would listen to my employers attorneys. They are straightforward to you about the possibility of denial. For Eb3 all you need is a Bachelors Degree. You can change employer and then should be able to use current workex. Follow what your employer and their attorney say. They are paid to help you and they know about your job , position and case details more than any one of us here. 

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The lawyers opinions are correct. You can't count experience in the current job for the same job. So essentially your PERM would be filed under an entry level job with 0-1 years of experience required. This automatically triggers a PERM audit and a RFE. Your company will then need to prove that they couldn't find an eligible citizen with 0 years of experience to meet the job requirements. This would be a tough ask, and given current environment, especially in the computer programming realm, would likely lead to a denial.

Your best bet is to find another job --since you still have 4 years of H1B left. You can then use your 2-3 years experience with the current job, as work experience, and your new company can file PERM for a 2-5 year experienced software engineer,  instead of an entry level.  That application will be much stronger and has a better chance of making it through. 

Edited by rara5

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2 hours ago, rara5 said:

The lawyers opinions are correct. You can't count experience in the current job for the same job. So essentially your PERM would be filed under an entry level job with 0-1 years of experience required. This automatically triggers a PERM audit and a RFE. Your company will then need to prove that they couldn't find an eligible citizen with 0 years of experience to meet the job requirements. This would be a tough ask, and given current environment, especially in the computer programming realm, would likely lead to a denial.

Your best bet is to find another job --since you still have 4 years of H1B left. You can then use your 2-3 years experience with the current job, as work experience, and your new company can file PERM for a 2-5 year experienced software engineer,  instead of an entry level.  That application will be much stronger and has a better chance of making it through. 

For a GC the employer always has to prove that they couldn't find a qualified US citizen or LPR. That is independent of experience, it is the foundation of the employment-based GC process.

And filing a GC for an entry-level position does not "automatically" trigger audits and RFEs.

Experience at the current employer can be used for a GC application IF the GC position is at least 50% different from the current position.

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On ‎6‎/‎26‎/‎2019 at 2:49 PM, JoeF said:

For a GC the employer always has to prove that they couldn't find a qualified US citizen or LPR. That is independent of experience, it is the foundation of the employment-based GC process.

And filing a GC for an entry-level position does not "automatically" trigger audits and RFEs.

Experience at the current employer can be used for a GC application IF the GC position is at least 50% different from the current position.

Thanks for the knowledgeable  "foundation of GC process" line. I think everyone knows that. I hope. Maybe it wasn't clear--- the point was -- the onus on the employer to prove inability to find an USC/LPR for an entry level position is much harder-- in an audit where additional proof and documentation is demanded.

And for your information, besides random audits,  DOL has a list of "triggers" that invoke an audit. Entry-level/no experience jobs are top of the list. Any competent lawyer can get you the list of triggers.  I suggest informing yourself prior to commenting.

YEs, which is why the response was experience in the job can't be counted towards the same job. Also, providing documentation to prove the position for GC is atleast 50 percent different is not easy. DOL analyst review can be very subjective.

 

 

 

Edited by rara5

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