Converting EB3 to EB2 with same employer

[GCIssue2]

First of all thanks for all you help what you guys are doing to immigrants.

I would like to know Experts feedback before approaching a lawyer.

I joined in a Company A when i have 4 yrs 8 months of experience.

Company A filed my green card application under EB3 category (perm and i140 approved) saying my job description qualify under EB3.Recenlty i got promoted to Senior position and job requirement for that position says 4 yrs bachelors degree plus minimum 5 yrs of experience. I asked my manger about job responsibilities are they 50% different compare to my previous one (I know but just want to confirm)he said "yes" but our legal team in not agreeing on it.

My Question for you is Should i apply for EB2 or not with my 4 yrs 8 months of experience?

I also have 8 months of experience while i was doing my graduation can i add that experience to my total which would be more than 5 yrs?

Any feedback or information would be greatly appreciated.

Thanks in advance.

[Attorney_22]

Generally, it is acceptable for the same employer to file both an EB3 PERM application and an EB2 PERM application as long as the roles are different and the difference in the minimum requirements are legitimate. However, there can be an issue if the beneficiary qualifies for the EB2 position by utilizing experience gained with this same employer. In this situation experience with the same employer can only be utilized if the duties of the new PERM position are substantially different than the duties of the previous position from which the experience was gained. Often, a non-managerial position to a managerial will be considered substantially different, however anything less than that requires an individual to establish they are different by giving a percentage for each job’s duties. For a more in-depth discussion regarding this matter please contact a qualified U.S. immigration attorney.

The Murthy Law Firm has a very well-regarded Green Card Department with extensive experience who would be able to provide you with excellent assistance. Please feel free to call our office to schedule a consultation with one of our attorneys.