EB3 to EB2 Same Employer - How can this be achieved?

[Belle]

Joe, I also think you are confusing the requirements for the category with ability to use experience gained with the same employer for the purposes of I-140.

[gdk]

Hi:

So if my EB3 was filed for a position (say "Staff Consultant") which required Bachelors and 4 years experience, at that point of time and even now.

But before 2 years I got promoted one level to a position (say - "Senior Consultant") which requires Bachelors and 5 years experience. Now I had 5 plus years experience when I initially joined the company. (and would have qualified for this position even at that pont of time)

Can my employer file for a new Labor in EB2 now (the responsibilities are similar but not significantly or 50% different) ?

Thank You all for sharing your comments.

[JoeF]

Show me at least one case when the employer was asked to justify the requirements and was denied certification for the sole reason that a position with the same description did not require a Master's degree in the past.

I am not a lawyer. But this happens.

A job can not require a bachelor degree one day and an advanced degree the next day.

Also, everybody who has a similar job in the company would have to have an advanced degree for the position to be EB2. The employer risks getting RFEs about that, and there have been RFEs about that.

[JoeF]

Joe, I also think you are confusing the requirements for the category with ability to use experience gained with the same employer for the purposes of I-140.

No, I don't. That's an additional problem here.

[Belle]

I am not a lawyer. But this happens.

A job can not require a bachelor degree one day and an advanced degree the next day.

Also, everybody who has a similar job in the company would have to have an advanced degree for the position to be EB2. The employer risks getting RFEs about that, and there have been RFEs about that.

Of course it happens. One day the LC was filed incorrectly, and the next day (or 3 month later, as the employer needs to conduct recruiting), it got refiled with the correct requirements. Happens all the time, and no, it is not prohibited.

As you may know, in most cases, the requirements for the job are the absolute minimum the employer would accept. It would not surprise me that the vast majority of companies do have people with much higher qualifications working in these professional position, so proving that the position requires a certain number of years or education would not be a problem at all. Just as an example, at the time my employer filed my LC, they begrugingly put a Master's degree as a requirement, but with an alternative for Bachelor's and experience. The kicker was that all of the people who worked in that (and even more junior positions) had a Master's degree, and in fact the same recruiting was used to file two LCs for two people, both had US Master's degrees and prior experience with large companies. At the same time, two more LCs were filed in other departments similar positions, and while both people had advanced US degrees (one PhD and one MBA from a very well known school) and both had prior US experiece with large well known companies (just like all of their counterparts), and still those were put as EB3. In all of these cases the employer realistically would not hire anyone without an advanced degree or very extensive experience, the issue was only whether a Masters was truly required. It would not surprise me at all that one day the HR would say that they have plenty of applicants due to recession, so now they decided that would not consider anyone without a Master's, and thus all of those positions are suddenly EB2.

So, if we are not talking bottom feeders here, but rather honest employers who need qualified people bad enough to offer H1s and EB immgration benefits, it is quite common for many positions that are recruited (for real, not for LC) as EB2 to be classified as EB3. And thus, they can be classified back. Usually takes a lunch or two with the HR manager ;-)

[JoeF]

Of course it happens. One day the LC was filed incorrectly, and the next day (or 3 month later, as the employer needs to conduct recruiting), it got refiled with the correct requirements. Happens all the time, and no, it is not prohibited.

Apples and oranges.

Here a person already got hired based on the bachelor requirement.

If the company claims that it was wrong, they would have to fire the person before they could re-classify the position as requiring an advanced degree...

As you may know, in most cases, the requirements for the job are the absolute minimum the employer would accept. It would not surprise me that the vast majority of companies do have people with much higher qualifications working in these professional position, so proving that the position requires a certain number of years or education would not be a problem at all.

That's not all that relevant. For the GC, the minimum requirements are what matters.

To give you an example: Pretty much all airlines nowadays won't hire a pilot who doesn't have a college degree.

Yet, it is not possible for professional pilots to get an H1, because the job does not require a college degree. And for GC, EB3-Other at most...

The airlines insist on the applicant having a college degree only because most pilots don't stay pilots for long, and as professional companies, the airlines don't want the pilots to not have a way out.

And it doesn't matter in what field the college degree is, they just want the pilot applicant to have a degree.

[BigJoe5]

For those who asked for cases on this topic.

Below from: http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/Jan082010_05B5203.pdf

“The petitioner is a banquet facility/real estate management company. It seeks to employ the beneficiary permanently in the United States as an accountant pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The petition is accompanied by a ETA Form 9089, Application for Permanent Employment Certification, which was certified by the Department of Labor.

The director determined that the ETA Form 9089 failed to demonstrate that the job requires a professional holding an advanced degree or the equivalent of an alien of exceptional ability and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree or an alien of exceptional ability. 8 C.F.R. §204.5(k)(4). The director denied the petition accordingly.

On appeal, counsel argues that the petitioner sought classification as an advanced degree professional or alien of exceptional ability in error by mistakenly checking block "d" in Part 2 of the Form 1-140. Counsel asserts that the petitioner should have checked the block for a professional or skilled worker pursuant to section 203(b)(3)(A) of the Act, 8 U.S.C. §1153(b)(3)(A).

The record shows that the appeal is properly filed and timely. The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary.”

*****

“On appeal, counsel states that a mistake was made in marking Part 2.d. and that the petitioner intended to seek classification as a professional or skilled worker.

Counsel also submits a "corrected" Form 1-140 in which box "e" is checked, as well as copies of the job postings made in connection with the labor certification application. The job postings state that the position requires a bachelor's degree in accounting or finance.

The regulation at 8 C.F.R. §204.5(k)(4) states in pertinent part that "[t]he job offer portion of an individual labor certification, Schedule A application, or Pilot Program application must demonstrate that the job requires a professional holding an advanced degree or the equivalent of an alien of exceptional ability."

In this case, the job offer portion of the ETA Form 9089 indicates that the minimum level of education required for the position is a bachelor's degree in accounting or finance and that experience in the job is not required. Accordingly, the job offer portion of the ETA Form 9089 does not require a professional holding an advanced degree or the equivalent of an alien of exceptional ability. However, the petitioner requested classification as a member of the professions holding an advanced degree or an alien of exceptional ability and attempted to change this request to that of a skilled worker or professional on appeal. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to United States Citizenship and Immigration Services requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). In this matter, the appropriate remedy would be to file another petition with the proper fee and required documentation.

The evidence submitted does not establish that the ETA Form 9089 requires a professional holding an advanced degree or the equivalent of an alien of exceptional ability, and the appeal must be dismissed.”

Below from: http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/Jan082010_03B5203.pdf or simply Jan082010_03B5203.pdf

“The petitioner must demonstrate his eligibility as of the filing date. See 8 C.F.R. § 1 03.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. In this matter, that means that he must demonstrate his track record of success with some degree of influence on the field as a whole as of that date. All of the case law on this issue focuses on the policy of preventing petitioners from securing a priority date in

the hope that they will subsequently be able to demonstrate eligibility. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Reg'l Comm'r. 1977); Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Izummi, 22 I&N Dec. 169, 175-76 (Cornm'r. 1998) (citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981) for the proposition that we cannot "consider facts that come into being only subsequent to the filing of a petition.") Consistent with these decisions, a petitioner cannot secure a priority date in the hope that his research will subsequently prove influential. Ultimately, in order to be meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of the date it was filed. Ogundipe v. Mukasey, 541 F.3d 257,261 (4^th Cir. 2008).”

[Belle]

Apples and oranges.

Here a person already got hired based on the bachelor requirement.

If the company claims that it was wrong, they would have to fire the person before they could re-classify the position as requiring an advanced degree...

That's not all that relevant. For the GC, the minimum requirements are what matters.

To give you an example: Pretty much all airlines nowadays won't hire a pilot who doesn't have a college degree.

Yet, it is not possible for professional pilots to get an H1, because the job does not require a college degree. And for GC, EB3-Other at most...

The airlines insist on the applicant having a college degree only because most pilots don't stay pilots for long, and as professional companies, the airlines don't want the pilots to not have a way out.

And it doesn't matter in what field the college degree is, they just want the pilot applicant to have a degree.

Joe, are you at all aware that what the company puts in real advertising for a position, what it puts into the LC advertising, and what it uses as a guide for real recruiting are generally three different things? I was recruited based on my graduate degree and the experience after I received my graduate degree. The requirements of my position were Bachalor's plus experience. In fact, all the way to the CEO in my line of work an advanced degree is not required. Are you saying that Senior VP of a Fortune 500 corporation should never qualify for EB2?

Yes, there are professions like nurses and pilots where the DOL is stricter (probably due to the influence of unions), but 99% of professions can have position qualify for EB3 and EB2 based on the whim of the employer.

BigJoe, please don't insult my intelligence.

"Accordingly, the job offer portion of the ETA Form 9089 does not require a professional holding an advanced degree or the equivalent of an alien of exceptional ability. However, the petitioner requested classification as a member of the professions holding an advanced degree or an alien of exceptional ability and attempted to change this request to that of a skilled worker or professional on appeal."

I will translate from legalese for you. It says that one cannot obtain EB2 classification based on an LC that has EB3 requirements. My recommendation for that poor chap and his employer stays exactly the same - just refile LC with EB2 requirements.

[Belle]

Hi:

So if my EB3 was filed for a position (say "Staff Consultant") which required Bachelors and 4 years experience, at that point of time and even now.

But before 2 years I got promoted one level to a position (say - "Senior Consultant") which requires Bachelors and 5 years experience. Now I had 5 plus years experience when I initially joined the company. (and would have qualified for this position even at that pont of time)

Can my employer file for a new Labor in EB2 now (the responsibilities are similar but not significantly or 50% different) ?

Thank You all for sharing your comments.

Your new position should require an advanced degree, and Bachelor's plus five should be an alternative. If so my answer is resounding YES, and Joe and BigJoe disagree.

[BigJoe5]

Belle,

Please don't insult my intelligence, either.

Gerrymandering job descriptions to suit the individual beneficiary is fraud and leads to very bad consequences.Please stop your guerrilla warfare advocating the use of fraud.

You just pointed out that some employers use different information for different purposes. Certain purposes count for the immigration process and some do not. Irrelevant information remains irrelevant no matter how verbose the advocate is in trying to force it into the equation where it does not belong.

In addition, EB-2 has TWO distinct bases under which to qualify. One is as a "professional with an advanced degree" and the other is "exceptional ability".

[JoeF]

Joe, are you at all aware that what the company puts in real advertising for a position, what it puts into the LC advertising, and what it uses as a guide for real recruiting are generally three different things?

If the company lies in the LC advertising, it would be immigration fraud, plain and simple.

If somebody applies for the position based on the LC advertising, and is qualified based on the LC advertising, the company can not say, sorry, that was just a make-believe ad.

In fact, all the way to the CEO in my line of work an advanced degree is not required. Are you saying that Senior VP of a Fortune 500 corporation should never qualify for EB2?

Yes. Not based on college degree. The person may qualify under EB1, International Manager, though.

Oracle's CEO Larry Ellison spent one quarter in college. Microsoft's co-founder and former CEO Bill Gates also dropped out of college. Steve Jobs dropped out of college.

A college degree is demonstrably not required to run a Fortune 100 company. It is nice to have one, but it is not required.

[ankinas]

All, Need your advise on this.

 

I have a (12+) 3years degree(BCA) from india and have over 10 years of work experience. My employer filed my I140 on EB3 3 weeks ago.

 

I have been a part of a team, where 50% of my duties are operational work and 50% is into projects, but recently the entire operations scope is outsourced and half of my team was let go of.

Now, my job responsibility is only to manage vendor operations with project participation as priority. In short, more than 50% of my job responsibilities have changed.

 

I am planning to enroll for an online MS program to upgrade my GC queue to EB2 with the same employer or from different employer if time permits. My question is, can i retain the same PD with the new Perm and I140 in EB2 after i complete my Masters?

 

 

your response is greatly appreciated 

[Raja787]

By mistake I have filed my GC on EB 2 and I have mentioned that I have masters but I only have Bachelors. Currently my EAD and travel document has been approved (I'm from Sri Lanka). Is there is anyway to resolve this issue before my 1-140 get reject?