EB3 to EB2

[vishalshah]

i currently am in US on H1(for 5 years). My employer filed for GC in eb3 category. I have masters degree and tried to convince my employer to file it in eb2 category. but i was told that "since i did not have a masters degree when i started my job in july 04 (i had one course remaining when i joined, i got masters in dec05), they cannot file in eb2 category.

right now my i140 is apprvd but priority date is unavailable. it seems it'll take forever to get gc on eb3.
1. Can i change my gc application to be on eb2, w/ same employer, now?
2. if i get a job with another employer, than i understand i cant retain my priority date can i retain my i140 though?
3. if i get a similar job with another employer, my h1 would get transferred; but come time of renewal, will i have to renew for 1 yr?

any answers/referneces will be highly appreciated?

vishal

[txh1b]

If your job requires a MS + X years exp, did you join when you had a MS+X years experience in the position is what determines it. If you gained the experience as a part of the job, it cannot be counted for the labor process.

If the GC position is at least 50% different than your current position, the experience gained can be used. There is more fine print than just saying this is all BS or a strategy employed by employers to screw people though there is a percentage of truth to that claim.

Frequently heard from employees, “My job requires special skills and that means we can file a labor cert.” The requirement of special skills alone does not mean that a labor cert can be filed or that it will be approved. Remember, getting a labor cert approved ultimately depends on whether there are U.S. workers available.

If a position requires certain special skills, there may be fewer U.S. workers available, which is advantageous for approval. Keep in mind, however, that the employer cannot include any skills gained at the petitioning employer as a minimum requirement. The foreign national must be able to document that all skills required for the position were obtained prior to working for the petitioning employer and prior to the date the labor cert was filed.

Additionally, any labor cert that contains a long list of special skills required will be seen by DOL as “tailored” to the foreign national in an effort to exclude U.S. workers. Tailoring is grounds for denial of the labor certification application. If DOL sees the list of requirements as too restrictive, it may lead to an audit or to denial of the application. In addition, special requirements will often increase the prevailing wage determination for the application.


1. Your job should require the EB2 requirements as the minimum qualifications to be eligible for EB2. What you have is secondary.
2. No, Labor and I140 have to be redone. Read more on immihelp about GC.
3. Based on approved I140 (if not revoked), you can get a 3 year extension. Look for threads that talk about this..