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View Full Version : EB3 to EB2 Porting urgent question


check_rd
02-08-2010, 08:57 PM
Hi,

I was a approved labor and I-140 with PD of 06/02/2002 (India) under EB3 category. Even after 8 yrs of filing i don't see any clear sign of EB3 moving to June 2002 . I am considering the following options and want the guru's advice here.

a) If i apply for new application under EB2 category , i just have around 5 yrs experience before joining this company and i did not include the experience of one company in my previous EB3 application (7 months exp) because it was an apprentice job (non-permanent job) will it cause any problem in the labor application because of newly added experience?

b) Say the labor gets approved and i filed I-140 and ported my EB3 PD of 2002 and if the I-140 get's denied can i still continue with my previous EB-3 I-485 application. I have my EAD, AP and H1 extension based on the EB-3 Application.

I do not know how much future long i need to wait on EB-3 so want to consider the risk factors if I-140 EB2 get's denied If i can continue with EB-3 application.

Please advice.

Thanks.

check_rd
02-08-2010, 09:02 PM
I need to mention that EB2 filing being considered is from the same employer who had filled EB3 application.

Roger Binny
02-09-2010, 09:52 AM
Rather than me answering go through this thread (http://immigrationvoice.org/forum/forum2-retrogression-priority-dates-and-visa-bulletins/1695-information-needed-on-switching-from-eb3-to-eb2.html), you may find more info.

Search for "porting" or "EB3-EB2" you will find plenty of useful posts.

By the ways do not try to use the word urgent, to get a faster response, your situation is no way urgent, it takes time/thought/research to go through the porting process.

kumarc123
02-09-2010, 10:29 AM
Hi,

I was a approved labor and I-140 with PD of 06/02/2002 (India) under EB3 category. Even after 8 yrs of filing i don't see any clear sign of EB3 moving to June 2002 . I am considering the following options and want the guru's advice here.

a) If i apply for new application under EB2 category , i just have around 5 yrs experience before joining this company and i did not include the experience of one company in my previous EB3 application (7 months exp) because it was an apprentice job (non-permanent job) will it cause any problem in the labor application because of newly added experience?

b) Say the labor gets approved and i filed I-140 and ported my EB3 PD of 2002 and if the I-140 get's denied can i still continue with my previous EB-3 I-485 application. I have my EAD, AP and H1 extension based on the EB-3 Application.

I do not know how much future long i need to wait on EB-3 so want to consider the risk factors if I-140 EB2 get's denied If i can continue with EB-3 application.

Please advice.

Thanks.

Avoid Porting for now, dues to the increase in EB2 backlog, USCIS is actually scrutinizing more are more application for porting. Be smart, everyone is waiting, you at least have an EAD. Just be patient, something good is coming for sure.

kartikiran
02-09-2010, 10:39 AM
Avoid Porting for now, dues to the increase in EB2 backlog, USCIS is actually scrutinizing more are more application for porting. Be smart, everyone is waiting, you at least have an EAD. Just be patient, something good is coming for sure.

kumarc123, I think lot of EB3s who are waiting since 2002, have definitely moved ahead in their careers which would enable them to be eligible in EB2. I think after waiting for about 8 years on top of spending about 5-6 years before that, some people feel weary.

Anyway, let us leave the option to the individual as these days USCIS started scrutinizing applications even in the last stages after I-140 is approved. So the risk is anyway there.

If an individual qualifies, in my opinion, they should apply in EB2, especially for those EB3s like me who have not done any labor substitution who have been waiting patiently for so long. EAD does not matter. The objective for all of us, EB3s, EB2s, EB1 or whatever category/country we come from, finishing the process is more important than getting stuck via EADs, APs etc.

Just my 2 cents.

kartikiran
02-09-2010, 11:24 AM
I am not an attorney. But these are just are my opinions based on various experiences/incidents. Please look for my answers below in bold.

Hi,

I was a approved labor and I-140 with PD of 06/02/2002 (India) under EB3 category. Even after 8 yrs of filing i don't see any clear sign of EB3 moving to June 2002 . I am considering the following options and want the guru's advice here.

a) If i apply for new application under EB2 category , i just have around 5 yrs experience before joining this company and i did not include the experience of one company in my previous EB3 application (7 months exp) because it was an apprentice job (non-permanent job) will it cause any problem in the labor application because of newly added experience?
-No.

b) Say the labor gets approved and i filed I-140 and ported my EB3 PD of 2002 and if the I-140 get's denied can i still continue with my previous EB-3 I-485 application. I have my EAD, AP and H1 extension based on the EB-3 Application.
-Yes.

I do not know how much future long i need to wait on EB-3 so want to consider the risk factors if I-140 EB2 get's denied If i can continue with EB-3 application.
- I understand your pain. I am in the same boat as you.
Please advice.

Thanks.

sareesh
02-09-2010, 11:27 AM
I agree with KartiKiran. if you have the option go for it.
I don't have option, in fact my labor was ms + 2 years and my attorney filed I-140 under EB3.
check_rd is this a different position?
you cannot(risk of RFE and rejection) apply for EB2 if you have already applied for EB3 for same position and same company.

Thanks,
SG.

check_rd
02-09-2010, 01:12 PM
Sareesh,

The reason for my frustration is i was checking the USCIS priority dates and since 2007 June the EB3 has hardly moved almost 3 yrs it was there in 2001 and still in Jul,2001. I looked at my job requirements for EB3 earlier and it mentions Bachelor's and just 1 yr experience. So if i have to do the porting then it needs to be a new job position as you are saying the risk of RFE and rejection is more. But can you let me how could USCIS know if it's the same position because this will be a new PERM application right ? Also, can you elobrate "risk on RFE and rejection" more becuase as i understand my current EB3 approved I-140 won't be effected even if there is an RFE or rejection to new PERM application.


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I agree with KartiKiran. if you have the option go for it.
I don't have option, in fact my labor was ms + 2 years and my attorney filed I-140 under EB3.
check_rd is this a different position?
you cannot(risk of RFE and rejection) apply for EB2 if you have already applied for EB3 for same position and same company.

Thanks,
SG.
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sareesh
02-09-2010, 01:43 PM
check_rd,
I understand your frustration. This is my understanding from my attorney. I hold him to refile my I-140 in EB2 and he metioned that it is too risky(using EAD). Then I asked him what are my options. He told me to file a new application for a different position not for the same position. I think in your perm application, your compamy has to mention whether they have filed any labor before for the same postion on your name.
"risk on RFE and rejection": I am not sure about your current EB3 approved case but your new perm application might get an rfe if you are using the same position/job title and if you cannot justify then USCIS will reject your PERM application.
This is my opinion only.

SG.

Sareesh,

The reason for my frustration is i was checking the USCIS priority dates and since 2007 June the EB3 has hardly moved almost 3 yrs it was there in 2001 and still in Jul,2001. I looked at my job requirements for EB3 earlier and it mentions Bachelor's and just 1 yr experience. So if i have to do the porting then it needs to be a new job position as you are saying the risk of RFE and rejection is more. But can you let me how could USCIS know if it's the same position because this will be a new PERM application right ? Also, can you elobrate "risk on RFE and rejection" more becuase as i understand my current EB3 approved I-140 won't be effected even if there is an RFE or rejection to new PERM application.


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ncrtpMay2004
02-09-2010, 02:13 PM
I am sure everyone here agrees that the intent of the EB Categories is qualification needed to start in a position.

BS and less than 5years = EB3, BS and more than 5 years or MS = EB2 etc, etc

When the classification was made, I do not think "powers" did not anticipate that a person would have to wait for 9+ years to get a GC (in the case of EB3). Now we have people who have been performing the duties of the position and have gained valuable experience.

Questions to members of this forum -
Will it be fair if EB2 with PDs greater than 3 years and EB3 with PDs greater than 8 years treated equally for getting spillover visas (without country quota considerations)? I am not talking an automatic upgrade, only the spillover. This is just starting the clock from the PD, we could have EB3 and EB2 who could have more experience. (I have 8 years of prePD experience and almost 6 years of (May2004) PD experience).

check_rd
02-09-2010, 06:02 PM
I was using the following link to calculate the number of EB-3 cases for India

USCIS - Questions & Answers: Pending Employment-Based Form I-485 Inventory (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5e170e6bcb7e3210VgnVCM100000082ca60aRCR D&vgnextchannel=ae853ad15c673210VgnVCM100000082ca60a RCRD)


From Jul1 to June of 2002 it shows it has 4279 pending cases. For yearly quote of 2882 (EB-3 India) that means if they process correctly that means that i should be eligible maybe April of 2011. Is my assumptions correct ?

snathan
02-09-2010, 06:07 PM
I am sure everyone here agrees that the intent of the EB Categories is qualification needed to start in a position.

BS and less than 5years = EB3, BS and more than 5 years or MS = EB2 etc, etc

When the classification was made, I do not think "powers" did not anticipate that a person would have to wait for 9+ years to get a GC (in the case of EB3). Now we have people who have been performing the duties of the position and have gained valuable experience.

Questions to members of this forum -
Will it be fair if EB2 with PDs greater than 3 years and EB3 with PDs greater than 8 years treated equally for getting spillover visas (without country quota considerations)? I am not talking an automatic upgrade, only the spillover. This is just starting the clock from the PD, we could have EB3 and EB2 who could have more experience. (I have 8 years of prePD experience and almost 6 years of (May2004) PD experience).

Do you agree that ROW EB2 has the same qualification as I/C EB2 (& EB3). While I/C EB2 wait for 3-5 years, ROW EB2 gets GC in a year. Do you think its fair or do we need to ask them to wait until EB2 guys who are waiting more than three years gets the GC.

When you compare there is no comparison...:p

desi3933
02-09-2010, 06:23 PM
I was using the following link to calculate the number of EB-3 cases for India

USCIS - Questions & Answers: Pending Employment-Based Form I-485 Inventory (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5e170e6bcb7e3210VgnVCM100000082ca60aRCR D&vgnextchannel=ae853ad15c673210VgnVCM100000082ca60a RCRD)


From Jul1 to June of 2002 it shows it has 4279 pending cases. For yearly quote of 2882 (EB-3 India) that means if they process correctly that means that i should be eligible maybe April of 2011. Is my assumptions correct ?

You need to include cases pending at local offices and cases pending at consular offices.


_________________
Not a legal advice.

check_rd
02-09-2010, 06:34 PM
You need to include cases pending at local offices and cases pending at consular offices.


_________________
Not a legal advice.

Where do i get this data from ?

kartikiran
02-09-2010, 08:48 PM
Do you agree that ROW EB2 has the same qualification as I/C EB2 (& EB3). While I/C EB2 wait for 3-5 years, ROW EB2 gets GC in a year. Do you think its fair or do we need to ask them to wait until EB2 guys who are waiting more than three years gets the GC.

When you compare there is no comparison...:p

snathan, your point is valid & hope you understand that and ncrtpMay2004 pain also understandable. But EB3s may start thinking that since any solution for EB3 backlogs are right now not visible, people who have been waiting for a long time would start to think, why not use the spillover numbers to clear the backlogs. I think that was ncrtpMay2004 member's viewpoint.
In this case, no body eats into anybody's quota alloted for a fiscal year and the extras if any are left and are used efficiently must be equally spread across all categories in order to clear the backlogs.

Hopefully you understand that everybody are frustrated and are trying to see how the solution can be achieved. I remember a thread where there was a thread with EB2 members screaming quarterly spillover is not occuring. We all know the answer we got from USCIS for that query which is quarterly spillover is indeed happening. We may not agree with that answer, but when USCIS themselves do not have clear picture of their backlogs, we doing predictions are useless.

Unfortunately, IV members has undergone this split between EB3 and EB2 these days within the members. Not from the IV Core, who has been trying to preach there is no way solution can be achieved just for one category/country. There was another thread which went with calculations which paints rosy picture for EB2 giving hopes that they may see dates moving well into 2007, whereas we heard from the actual source(DOS) in january bulletin that even with spillover the dates will reach only up to Nov 2005(max).

So hopefully the members, stop our own calculations and predictions when we do not have proper data to do so and start the focus on grassroots approach to go by IV Core's initiative and give it a push.

Everybody are frustrated and hopefully we can stop this bickering over category and country to start channeling our energy into meeting lawmakers etc. That is the only way it might work in my opinion.

Anyway, just venting what I had been observing for a while

Peace.