Date current, can I file AOS though I am not in prospective role in PERM?

[drajanahalli]

* My PD (EB3) is Jan 2012, from my previous employer

* I changed job 4 years ago, I have PERM from new employer with PD Dec 2020 (EB2).

* As of Nov 2021, filing date (India) for EB2 is Jan 2013, and EB3 is Jan 2012.

I thought I am eligible (with porting previous PERM PD) for filing I-140 & I-485 concurrently. But attorney says that I am not eligible because:

" you are not eligible at this time because you are not in the prospective role. The PERM role is Software Developer Level 5 and you are in the Software Developer Level 4 role at this time. When that changes please let us know then we can proceed with the AOS."

I though role in PERM is the prospective role and I don't need to be in the position to file AOS. Please comment on validity of my attorney's statement or any suggestions on workaround.

Thanks in advance,
Devi R
 

Edited November 3, 2021 by drajanahalli
adding details.