EB2 vs EB3

[cg_42]

Hi All, I'm very new to this forum, so I'm posting this on both I-140 and Labor Certification forums (mods, kindly remove it wherever it's not appropriate). 

My company has recently started my GC process and the law firm helping with my case says that my category will be EB3 and their justification is that "my current role does not explicitly require Masters as a minimum required qualification". I work as a Product Manager in the tech industry in the Bay Area and based on anecdotal data that I'm gathering, all the other Product Mangers that I know in my circle are put in EB2 category (these are people from both small and big companies). Please note that their argument is that, despite me holding a Masters from a US University, the job itself doesn't require Masters as a minimum qualification. My company is a (relatively) small startup and as such they don't do any levels within "Product Manager" i.e., those with close to zero experience and those with several years of experience, and those with Bachelors, Masters and PhDs all have the corporate title "Product Manager"

 

I have questions on two broad topics.

1. How detrimental is EB3 for my case?  I understand that my category can be changed at a later date (but would my priority date would be preserved?). As I understand from the state department website, the EB2 vs EB3 is currently ~3 years but things CAN get worse ( https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-august-2022.html ). 

2. What's the best way to work with my manager/HR team to get the law firm comfortable to file in EB2? If I go by the reasoning I was provided, would it suffice for my company to attest to the idea that a Masters degree is "required" for my role (to be honest no Product Manager job anywhere in the world absolutely ever required a Master's degree as a minimum)? Should I seek legal counsel for myself and how can I help influence that?

 

If EB3 is not extremely detrimental to my green card process, I would rather stay at my current company and figure out moving to EB2 later, but I would still prefer to push for an EB2 application.

 

Thanks in advance!

[Attorney_16]

The Labor Certification process is an employer driven process.  This means that the employer sets the minimum requirements for the position as the DOL requires that the labor market be tested with the minimum requirements for a position.  There is no way to tell if EB2 or EB3 will become current first as the dates can move backward, stay the same, or move forward.  You could always have an EB3 case now to retain a priority date and extend your H1B and then file an EB2 case in the future, retaining the old priority date.