Question regard filing GC in EB3 or EB2

[robustm]

Hi guys,

I got my job as a fresher(after finishing my MS) at xxx cmpny four years ago. My H1-b is filed under xxx cmpny and when I asked for my GC process, the Lawyer said that they cannot apply in EB2 as I dont have any prior work experience when I joined this compny, so they will apply my GC in EB3 which I dont want to. Recently, I found a new job posting in a different division but same company.(posting says, it requires 3+ year experience). My question here is when I apply for this position will I be qualified to apply my GC under EB-2 category counting my current 4 years of experience at different division? (note: My new H1-B will be still under xxx cmpny)

Thanks in advance.

robustm

[robustm]

Ok let me put it this way, If I accept a different position in the same company with (BS + 5+ year exp) can I use my current experience from the same company to apply GC under EB-2 category?

[maverick41]

Ideally you have to use the job experience from a different/former employer. That being said, yes you can use your current experience with the same company but the jobs have to be substantially dissimilar. If you are trying to use the experience in the same company, lawyers usually make you list out the job duties and % time spent for each job function for a current and prospective job (in your case, applying in a diff division) to see how different the duties are. For example- position A - does not manage program budget but position B- supervises staff & manages program budget. You can have about a 25 -27% similarity.

In my case, I got promoted twice within my organization and was able to use the prior experience in the same company because the job duties had significantly changed. My PERM labor was certified under the EB-2 category.

[pontevecchio]

This will need an expert Lawyer to go over the 2 job descriptions and suggest smart ways to overcome any defects.

[robustm]

Thanks for your reply maverick41. When I joined this company it was an entry level position doing all the software duties. And this new position that I found in different division is looking for someone with 5+ years of exp but mostly will do the same duties with more experience. Do you think I will difficulty in using the current experience?

Thanks

Robust

[maverick41]

If your job functions in the same company has not changed significantly then it will be a problem to convince DOL. I'm not in the IT or engineering field but I hope you can find a way working with a lawyer to show a difference, maybe an expanded job portfolio with the new position? This is a tough call because the last thing you want is to deal with the hassle of your labor application getting audited.

[catx]

Using experience from your current employer for a PERM labor certification (especially EB-2) is generally a difficult test. The Department of Labor (DoL) scrutinizes such applications closely. The same duties with more responsibility and experience is not sufficient. The job needs to be at least 51% different from the current job and at the same time in the field which you have a degree -- a tough combination. This is one area that really needs a qualified, experience immigration attorney to present the information to the DoL so that it demonstrates that the job is 51%+ different.

[robustm]

Thanks for all your replies guys.