Need advise!! L1A want to file in eb2. Please help!

[rodman83]

Hi Gurus,

Hoping to get your thoughts on my case. I work for a company A with about 15 US employees and about 80 India employees. I came to the US on an L1A(multinational manager) visa in January of 2009 and my company filed my I140 in the eb1c category in August of 2010. USCIS issues an RFE to prove my managerial capacity before coming to US to which the attorney replied in October of 2010 by providing appropriate documentation. The USCIS denied my I140 in the July of 2011 stating that the evidence was not sufficient to prove that I worked in a managerial capacity in India. My L1 visa was due for extension in October of 2011 and so the attorney advised us to appeal the denial as it would help the case for the L1A extension. Both the denial appeal and the L1 A extension were filed around the same time. The L1A extension was approved in September2011 and my current I-94 is valid till October of 2013. The denial appeal was transferred to the administrative appeals office as expected in January of 2012.

My attorney re-filed for my I-140 in EB1-C category in April of 2012 with additional documentation on my managerial duties. Yesterday I got a notification from the USCIS that another RFE has been issues to this application as well. I do not have details about the RFE yet, but I am guessing it is around my managerial capacity.

I have been working for company A since November of 2006 for the last 5 and a half years(so I worked for them for 2 years and 2 months in India and 3 years and 5 months in US). I have a 4 year BE degree from India in computer science.

Here are some of the questions I had:

1. Can I re-file for I140 under eb2 while still on an L1A visa with employer A?

2. Am I eligible for eb2? Does experience with current employer count towards the Bachelors+ rule?

3. I have already spent 3 years and 5 months in the US on an L1A and so I have a maximum of another 3 years and 3 months to reach the 7 year maximum on an L1A. Even if I file in eb2, it would take more than this time to get to a GC. What are my options? If employer B files for my H1B next year, the earliest I could start is October of 2013 and the H1b will be valid for another 1 year and 2 months. Is that sufficient time for employer B to file for a fresh I140 and PERM and still apply for an H1 extension beyond the 6 year max?

4. If I am not eligible for eb2, what is my best option going forward, keeping in mind that the H1 cap for this year has run out on 6/11.

I would really appreciate your inputs on my situation. Thank you all.

[Attorney_22]

Due to the complexity of your situation and questions, it is advisable to speak directly with a qualified U.S. immigration attorney. However generally, individuals may pursue the PERM green card process concurrently with an EB1 petition. To qualify for EB2 the minimum requirements of the position require U.S. equivalency to a Master’s degree or a Bachelor’s degree and five years of progressive experience. Experience may be utilized with an affiliate organization abroad and/or with the same employer if the position you gained the required experience in is substantially different. To discuss your situation and options available to you in more detail please contact one of the Murthy Law Firm’s many experienced attorneys.