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

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Hi Experts: EB3 to EB2 Same Employer

I am approaching my current employer with a request to file Labor in EB2 and then port the dates.

Please let me know how is this possible? What things I and my company should be aware of?

My status: EB3/India/PD May 2007/485 filed in July 2007.

Thank You for your responses.

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The employer would have to file a new LC for a job that is at least 50% different from your current job, and of course, the employer has to justify that the new job requires an advanced degree.

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You will need a new LC/I-140. No need to be 50% different, unless you need to bank some job experience from your job with the same employer.

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I am in the same process right now. In my case I believe all the steps needed for filing the PERM are done (Applicant is not supposed to be involved in this process) and the lawfirm will be filing for PERM some time in october.

Your new job must be at least 50% different from the current job if you're filing from the same company. The need for advanced degree with experience has to be justified.

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"Your new job must be at least 50% different from the current job if you're filing from the same company."

That's incorrect. You only need a different job if you are trying to use experience from your current job to get to the 5 years required. If you don't need to claim any experience with the current employer (have more than 5 years of experience before joining the employer or have a Master's degree), then you can file for the same exact position.

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"Your new job must be at least 50% different from the current job if you're filing from the same company."

That's incorrect. You only need a different job if you are trying to use experience from your current job to get to the 5 years required.

And since the OP asked about porting to EB2 with the same employer, that implies that the OP is using the experience with the employer. Hence,, the new job has to be at least 50% different from the current one.

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" You only need a different job if you are trying to use experience from your current job to get to the 5 years required."

That's true, I forgot to mention this part in my post.

Hopefully you (OP) got a promotion or you're moving to a new position in the same company. But if you're trying to convince the employer to file for EB2 for the same position that they filed EB3....this for sure you cannot justify and most probably your application will be denied.

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"But if you're trying to convince the employer to file for EB2 for the same position that they filed EB3....this for sure you cannot justify and most probably your application will be denied."

Why?

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Current position is already filed in EB3, how can they upgrade it to EB2? Do you really think it will fly with DOL that company suddenly needs better qualifications for the same position that they didn’t need when they initially filed.

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Current position is already filed in EB3, how can they upgrade it to EB2? Do you really think it will fly with DOL that company suddenly needs better qualifications for the same position that they didn’t need when they initially filed.

That's NOT going to work.

For EB2, the employer would have to promote you to a position that is at least 50% different from the position specified in the EB3 case.

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"But if you're trying to convince the employer to file for EB2 for the same position that they filed EB3....this for sure you cannot justify and most probably your application will be denied."

Why?

Simple: The employer already has specified that an advanced degree is not needed for the position.

The employer can not all of a sudden say otherwise.

The employer would have to promote the person to another position that requires an advanced degree and, since the OP is apparently trying to use experience gained while with the employer (otherwise, the employer could have filed EB2 to begin with), the new position has to be at least 50% different from the current position.

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In fact there is one other option that my company tried without filing LC again. My original I-140 was filed for EB3 category sometime in 2004(PD Jun 2003) . This was approved in 2005 in EB3. Last year my company sent a request for an amended I-140 petition and requested the new one to be classified under EB2.Please note that i had Bachelors plus six years of experience(in 2003) when the original LC needed a Bachelors with 5 years. The USCIS amended the petition and issued a new approved I-140 in EB2 category two months ago, which made me current. I went for another finger printing last month. Again not a celebration time yet but i should say in the last 8 years this is the closest i have been to get an approval.

Since everything was current during 2004, my company attorney ill-advised to file in EB3 back in 2004 for which i paid the price. Anyways now having rectified that error I am waiting now with lots of hope.

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Simple: The employer already has specified that an advanced degree is not needed for the position.

The employer can not all of a sudden say otherwise.

Says who?

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Says the EB classification - EB3

Where in the law does it say that the same position cannot qualify for two classifications?

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Where in the law does it say that the same position cannot qualify for two classifications?

INA 203 (b)

(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -

[/url] (A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

*****

© Determination of exceptional ability. - In determining under subparagraph (A) whether an immigrant has exceptional ability, the possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning or a license to practice or certification for a particular profession or occupation shall not by itself be considered sufficient evidence of such exceptional ability.

*****

(3) Skilled workers, professionals, and other workers.-

(A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2):

(i) Skilled workers. - Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

(ii) Professionals. - Qualified immigrants who hold baccalaureate degrees and who are members of the professions.

(iii) Other workers. - Other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

(B) Limitation on other workers. - Not more than 10,000 of the visas made available under this paragraph in any fiscal year may be available for qualified immigrants described in subparagraph (A)(iii).

© Labor certification required.- An immigrant visa may not be issued to an immigrant under subparagraph (A) until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 212(a)(5)(A) .

******

The qualifications for EB-3 do not lend themselves to EB-2 POSITIONS. Once the POSITION is locked-in with a labor certification at EB-2 this fact alone would preclude re-classifying the same EB-3 POSITION as an EB-2 POSITION.

The qualifications of the beneficiary are irrelevant to the classification of the POSITION. Remember that the EMPLOYER is the PETITIONER who files an I-140 to fill a particular POSITION of critical need to that employer. The beneficiary comes into the situation AFTERWARDS when the employer cannot locate a qualified U.S. worker willing to take the job.

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"Once the POSITION is locked-in with a labor certification at EB-2 this fact alone would preclude re-classifying the same EB-3 POSITION as an EB-2 POSITION."

That's a completely unsupported statement. Prosition requirements change all the time, and the employer may change them at their whim. It's not prohibited by any laws. I have seen this happen, and it worked out fine.

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"Once the POSITION is locked-in with a labor certification at EB-2 this fact alone would preclude re-classifying the same EB-3 POSITION as an EB-2 POSITION."

That's a completely unsupported statement. Prosition requirements change all the time, and the employer may change them at their whim. It's not prohibited by any laws. I have seen this happen, and it worked out fine.

Then its a new position and needs a new labor certification. An alien beneficiary can retain the old PD from an approved EB-3 petition and shift the PD to an approved EB-2 position, that is true. The problems come into play when the petitioner tries to "gerrymander" position descriptions to suit the individual alien worker. Such attempts lead to accusations (and often findings) of fraud. That can lead to a petitioner's debarment from filing any petitions for any workers. Employers have their own strategic position to consider.

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"Then its a new position and needs a new labor certification."

Of course it is. Except the title, pay, and responsilities are exactly the same as the old position. And we are not talking about matching the position to a worker to unfairly refuse other applicants. It used not to require Masters or 5 years of experience and now it does. That's it.

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"Then its a new position and needs a new labor certification."

Of course it is. Except the title, pay, and responsilities are exactly the same as the old position.

"Then its a new position and needs a new labor certification."

Of course it is. Except the title, pay, and responsilities are exactly the same as the old position.

Then the employer can not justify that the position all of a sudden would require an advanced degree.

An employer can not just say "yesterday a bachelor degree was ok for the position", and "today a masters degree is required."

The employer would have to justify why the position now requires a masters degree when yesterday a bachelor degree was sufficient.

It used not to require Masters or 5 years of experience and now it does. That's it.

Again, not going to work.

The employer would have to justify why the position now requires a masters degree when yesterday a bachelor degree was sufficient.

He can't just say "because I want it."

So, the bottom line: For EB2, it would have to be a different job, with significantly different (>50%) responsibilities.

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you guys think , we need to showup more salary also, when we changing EB3 to EB2 Same Employer ?, when i filed eb3 i had $70,then changing EB3 to EB2 need to showup more?. please help me -thanks

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you guys think , we need to showup more salary also, when we changing EB3 to EB2 Same Employer ?, when i filed eb3 i had $70,then changing EB3 to EB2 need to showup more?. please help me -thanks

Salary is only one minor consideration. Please compare the job descriptions in the OOH (the DOL handbook that describes positions and their usually required education, training, and/or experience as well as the duties). The actual duties performed are the crux of the matter.

While it may be true that as a business grows, the positions may also grow and that position growth may be tied directly to the person who occupies it. Now for the sake of fairness to the employee, the pay will increase commensurate for the job performed. That reality does not retroactively change an approved labor cert and the experience gained by that person in that job cannot support the change from EB-3 to EB-2 and retain the PD for that person in that job.

The NEXT person hired to replace the person who pioneered the position might end up being classified as an EB-2 based on a desk audit or reassessment of the qualifications that the replacement employee would need in order to step into the recently vacated position. This however, does nothing for the incumbent employee.

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The employer would have to justify why the position now requires a masters degree when yesterday a bachelor degree was sufficient.

He can't just say "because I want it."

So, the bottom line: For EB2, it would have to be a different job, with significantly different (>50%) responsibilities.

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.

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