EB3 vs EB2 - based on firm

[sam1919]

My company is filing a green card for me. I have done my Masters in the US and also have more than 8 years of experience. But still the immigration team says they have to apply in EB3. Here are their reasons that they provided me:

- The minimum requirements for my position is Bachelors + 2yrs of exp. (which is actually not true, as the position requires more than 8 years)

- They say DOL takes surveys and determine the entry requirements for the positions(its not under control of me and my manager). They say Database Administrator is not considered an EB2 (Given that I already have an EB2 I140 in the same position with my previous employer)

My manager is in complete favor of me, but this is all mentioned by my immigration and they also mentioned the HR decides the job description and they cannot change them. 

Is all the above true? Does the DOL categorizes the DBA as EB3 by default? Please help me.

[care_candidate]

The reason company do this is the obvious one - BUYING TIME!

EB-3 takes long time to approve than that of EB-2. These days even it is not uncommon to wait more than 10 years for EB-2. This is most legitimate (and yet unethical if you consider this is not right) way a company can hold an employee as he/she waits for permanent status.

Despite this, you have limited options:

First is to leave the job and look for one that will sponsor you GC with EB-2 category. This is easy to say than done. As when company hires, they first start with H1b; and talks for GC are pushed once you start employment and then you are in similar situation as you are now. Or for some companies, they have set number of years to spend before you even begin talk of GC. Or some company start the procedure only when you are in last year or last couple of years of H1b - That is year 5 or 6.

Second is to push hard your existing company for EB-2. Unless the job is really low grade (Not judging here) kind technician type there is always a grey area in which they can easily bump you up saying few requirements that only high level candidates can fulfill that will qualify you for EB-2. Remember that for same job there is no such rule that company cannot file for EB-2. It is entirely in company's hand. What I observed is that many times, there is infrequent communication between company HR representative and actual attorney. This is because company keep communication with attorney to a limited amount as attorneys cost a lot because they charge based on time sometimes. And choice of which category to use gets little attention. So here, if you stay strong and send signal that you can only continue employment on condition that EB-2 is the only possibility without negotiation. You can introduce willingness to repay for entire process, which is not going to be more than few thousand dollars in case you leave employment within next few years or before receiving GC. Please understand that staying in company waiting for priority date to become current is the longest delay in entire process, which could take more than 50 years (Not exaggerating here) if you get stuck in categories such as EB-3 India. Then, paying few thousand dollars can be looked as futile amount.

Do evaluate options carefully