Saturday, January 29, 2011

EB3 to EB2 Porting with same (current) employer: Not a good idea

Saturday, January 29, 2011 | , , , , , , ,

These days it is been topic of the town for Indian nationals to port their priority date from EB3 to EB2 category. So far this totally makes sense. This could tremendously reduce the wait time for an individual to receive a green card. If you are porting your case after attaining new job offer from a new employer that would qualify you into EB2 category, well then this should be very straight forward. But an individual and his employer should be very careful while taking this step if they are planning to port the case with a same (current) employer. There are rumors that many employers are upgrading their employees’ petition from EB3 to EB2 category just to retain their employees.

Why EB3 to EB2 Porting with same (current) employer is not a good idea?

To port case from EB3 to EB2 category with same (current) employer it is a common notion among immigration community that your new job description should be different and you should be able to prove that you have attained all your experience before joining current employer. New Job Description should be at least 50% different from previous EB3 job description in order to port case with the same (current) employer. It is also believed that any progressive experience attained with the same (current) employer could be counted towards new EB2 petition. Though this sounds perfect, but an individual opting for this route should consider following points that USCIS would consider before approving your case:

a) Whether new future job opening is legitimate and well documented internally in the company. Employer could be asked to provide evidence or proof supporting this. (example: an email trail from manager requesting addition of head count)

b) If an employee from a company is considered for this new EB2 level job, what would happen to future EB3 level job? Has employer posted an old EB3 level job again in the market? If earlier EB3 level job is not open, did employer falsify his need previously? Is it required for an employer to fill that position?

c) Was your promotion internal and you were considered for this new future job due to experience gained at EB3 qualified job? For example “Software Engineer” to “Project Manager”

d) Whether new job description is biased to gratify individual’s experience and qualifications. This would cause more audits at new PERM or I-140 level.

e) If an American citizen who would qualify for your job at EB3 level today, could he be qualified for your EB2 level job after attaining similar progressive experience. Does this call for testing market for your EB3 job level again in current time when unemployment is so high.

f) How many employees from same employer have recently been upgraded from EB3 to EB2? Does this call for auditing employer for all the recent approved cases.

So in all EB3 to EB2 Porting with same (current) employer could open whole new can of worms, and I would refrain myself from opting this route. If an employer is considering this as an option for number of his employees, he should be cautious as this could call for many audits in future and he could eventually be under scrutiny by USCIS and DOL. It is just a matter of time.

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Anonymous said...

People suggest that porting to EB2 with the same employer is not adviseable and so switch employer and apply for EB2 with the same PD.My doubt is the same-How will the PD of the EB3 application maintained as I have already left the job and the application could be revoked?

CM_USNonImmigrants said...

As long as your I-140 is approved at previous EB3 job and I-140 was not revoked due to fraud or misrepresentation, you can retain your PD indefinitely.

Anonymous said...

So if this being the case then I dont see much complications when porting to EB2 from EB3 with the same employer, other than that the EB3 job must be available to other person....Correct me if it is wrong

guest said...

I agree... it doesn't look much different if the employer is the same or different. Of'course, there could be some restriction such as job duties needing to be different and one's not being able to use experience gained with the employer etc.

Dipy22 said...

Basic idea here is that when you file for EB2 from a different employer, its guaranteed that the job description and your qualification really matched. In same employer, since you acquired experience there, they might just hand over a particular title to you which is what USCIS doesnt want. Thats the only logical reasoning, otherwise, it doesnt make sense why you need to leave your employer to file for EB2 when your job title and qualification both qualify.

broken immigration said...

pffft. my company recently ported 2 people from eb3 to eb2. The eb2 jobs were false, did not exist and their descriptions were worded to perfecectly match the 'applicants'. Both got their eb2's without a hassle.

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