marcas

My husband is applying for GC through his employer. He is a System Engineer,he has a MBA in a USA university and he has 6,5 years of previous work experience. Right now he is working as a Senior Consultant for a big consultant company is USA. 2 months ago the lawyers said to him that he was qualified to apply under EB2 based in his previous work experience (more than 5 years), they said to him that he can't use his MBA because his actual position doesn't required a master degree. However, now they recommend to apply under EB3 because they say that if he apply under EB2 his labor certification maybe audit and even denied. We are a little confused because we think that he qualified to get EB2 but the lawyers recommend EB3. We need to get a GC as soon as possible because he is on H1 but I´m on H4 and I can´t work. What do you thin about that? It's very risky to apply under EB2? too many EB2 applications got denied?.

Thanks,

Elvira

I doubt that anyone here would know more than your lawyer. Might be worth getting a second professional opinion.

Although you are unlikely to get a green card either way any time soon.

H4 sucks big time. If it were me I'd cut my losses and go home but only you can decide whether it's worth the very long wait.

dbj1000

In his position, I'd insist on filing an EB2 Labor Certification. An EB3 will leave you in limbo for years.

My lawyer was similarly unknowledgeable and narrow-minded when it came to my LC. Without telling me, he submitted mine as EB3 despite the fact that I'm a leader in my very specialized field. After 6 months of persuasion, my company told him to file a National Interest Waiver for me, and it was granted within two months.

My point is, these lawyers are often rather disinterested when it comes to the situations their foreign clients find themselves in. They'll file an EB3 because it looks bad to have a rejection on their files, so they go for the "sure thing" even if it adds years to the process.

Folinskyinla

Hi:

This is an FAQ in the employment based arena. The problem is that the employment based immigration system is two preliminary steps before the actual application for permanent residence. The first, of course, is the labor certificate, the second is the immigrant visa petition [I-140].

The labor certificate is administered by the Department of Labor. DOL is charged with certifying that there are insufficient willing and qualified US workers to take the work the alien will be performing and that the working conditions and wages of US workers will not be adversely affected by the alien working.

The focus of the DOL is on the effect on AMERICAN workers. The ultimate immigrant classification [EB-2, EB-3, EW] does NOT figure into the point of view of the DOL. [It matters to the alien, but the labor certificate process is not directly about them].

It is the I-140 that focuses on the classification the alien is entitled to. Now for EB-2, it is not only enough that the alien is an advanced professional, but the job requires an advanced professional. [BTW, I happen to disagree with this, but the interpretation has been in place now for over 15 years without any successful challenge].

So, there has always been an inherent tension in the whole system. In the labor certificate process, DOL is on the lookout for "inherently restrictive" requirements that would discourage qualified US workers. An analogy might be made to the "minimum hardware requirements" to run software. It is well known that those "minimum hardware requirements" are less than the optimal or desirable hardware. But DOL wants to make sure that the "actual minimum requirements" are set forth.

So, yes, you want that EB-2 classification for obvious reasons -- but you won't even get to file the I-140 if there is no approved labor certificate.

I don't know the details of the JOB your husband performs, but I can easily see where the lawyer is coming from. With the advent of PERM, I don't do labor certificates anymore, but my suitemate Eileen Chun-Fruto does. [info@fongandchun for a free consult]. The three of us often brainstorm when one of us is blocked in a legal question regarding our three areas of practice. It is often a struggle to fit the job into an establish JOB description that NEEDS an advanced degree.

Folinskyinla

Hi:

Metaphorically speaking, you are mixing apples and oranges. As I posted above, as far as DOL is concerned, there is no such thing as an "EB3 labor certificate" or an "EB2 labor certificate."

What happened in your case is that the NIW obviated the need for a labor certificate! The "waiver" in "NIW" is of the labor certificate.

As we discussed before, the NIW is generally difficult to get. A few years back I had a client who I evaluated as an excellent candidate for a NIW EB-2 and an extremely marginal EB-1 "extraordinary ability" case. I put in TWO concurrent I-140's. The EB-1 got approved post-haste and the EB-2 generated the RFE from Hell with the whole panalopy of NYSDOT questions.

One thing about a possible NIW is that it is a free shot for someone here in H-1b status. No harm, no foul if it fails.

However, an employer is allowed to put in ONE PERM application for a job opportunity [and DOL does catch multiple filings -- I've seen it happen]. So, without knowing the fact of the OP's husband's job, a marginal PERM application in order to aim at EB-2 might lead to the "audit" which will delay processing. And if the PERM is ultimately denied, no priority date! And then there is a delay in starting over.

BTW, the regulations that came into effect last July require the EMPLOYER to pay for the labor certificate. The reasoning of the DOL is that if the employee pays, they are taking a wage less than US workers. Don't shoot the messenger on this one inasmuch as I think this is ridiculous thinking in that the new requirement is requires that the alien get a job benefit not offered to US workers. [It pays to remember what makes the grass grow green].

Finally, it might be a good idea to see if the OP's husband qualifies for NIW. She has given only part of the equation.

dbj1000

EXCELLENT reply Foly. You're right, I was confusing things.

However, with EB3 priority date retrogression versus EB2, wouldn't it be best (if NIW is not an option) to file labor certification as EB2 to ensure that once LC is granted the applicant is then eligible for EB2 priority dates?

Folinskyinla

Hi:

Thank you for the compliment. On the question you pose, it is a judgement call. Increasing the level of experience/education also increases the chances of rejection of L/C or an audit. It is juggling conflicting issues.

When PERM first came on line, I was with a firm that was doing those. Unfortunately, we went with the language of the law rather than what DOL thinks they put in the regulations. [A minor error -- but PERM eliminated the former "substantial compliance" provision]. We had an appeal pending. At the time EB-3 was backlogging, and like OP's husband, client had a masters which helped him do the job, but all information indicated that the job didn't need a masters as a "minimum" requirement. He went to another attorney without telling us -- had the same employer file a new PERM with a slightly different job description in an attempt to get it into an "EB-2" classification. This effort resulted in killing BOTH labor certificates, which also killed eligibility for extensions of the H-1b beyond the seven years.

Moral of the last paragraph -- it pays to be cautious.

Folinskyinla

Oops! A typo -- [email protected]

dbj1000

YIKES!

I'll add that to the already long list of bullets that I dodged without even knowing they were headed my way!

Reminds me that I never did hear anything about the outcome of my pre-PERM Labor Certification application under EB3. For all I know, it's still sat in some mile-high backlog pile, two years after my NIW was granted and my GC arrived.