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I am with company A from last 5 ½ yrs. My 6 th year visa is expiring on Oct 15th 2013.

My GC is processing with company A in EB3 process. Current situation is 140 is pending(from last 5 months). I asked my company to upgrade 140 to premium so that I will get 3 yrs extension. They did and I am waiting for 140 result.

The reason company A applied in EB3, I had 3 yrs degree + 2 ½ yrs previous company exp. I have total 8 yrs of IT experience (with company A 5 ½ yrs).

So I want to change the employer and start my GC in EB2 process (I will get exp letter from company A)

I came to know since I am in 6 th yr of H1B, if I want to switch to new employer I need to have 140 copy.

But I am not sure whether company A gives me copy. Usually I heard that NO employer gives 140 copy to employees…is that true? Is this against USCIS rules?

Please advise on options. Thanks.

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First of all your job should require EB2 and juat with 3yr degree it is virtually impossible to file EB2.

You cannot combine education and experience like H1B in PERM GC process.

For I-140 copy, it depends on employer. It's not your petition and it's employers petition on your behalf. Some companies give copy and some don't. You can do FOIA request to get copy of I-140 and might take many months to get it. There is no such law to give or prohibit copy of I-140.

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But as per my knowledge, i am eligible for EB2 if i change company, because i will get previous company exp (3 yrs degree and 5+ yrs exp). Recently I got promotion to lead the project.

Please correct me If I am wrong?

Your problem and enemy for EB2 is 3 year degree, not your experience. You can have 50 years of experience, but it doesn't matter in your case since for EB2 you need right education indepdendent of experience. Also your job qualifications determine EB2 or EB3.

So no you will not qualify for EB2 (provided your position is classified by your new employer as EB2) unless you have US Masters or 4 year bachelor degree (Foreign or US). Even with 3 year foreign bachelors degree + 2 year foreign masters degree, you will not qualify for EB2.

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While USCIS regulations define EB2 criteria as being a Master's Degree/equivalent or a BS/equivalent plus 5 years post-BS progressive experience, the Service generally takes the position that a 3 year foreign degree is not the equivalent to a 4 year U.S. degree. The Service will generally not allow the combination of experience and education to achieve the equivalent to a U.S. Bachelor's Degree. If someone has a 3 year BS degree followed by a 2 year MS degree, and one can show that he or she was admitted to the MS degree based on the BS degree it is possible - Murthy Law Firm has done it in some cases - to achieve EB2 with 5 years experience earned after the foreign MS degree is earned. In these kinds of instances it is often valuable to consult with an experienced immigration lawyer to obtain specific legal advice.

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