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Robert Kumar
02-12-2011, 05:59 AM
Hi,
One of my friend's friend was trying this EB3 to EB2 porting within the same employer, and his job duties have changed considerably more than 50%. His labor got cleared with no issues, but his case got into issues at 140 stage, and the company got a audit notice it seems and they wanted to check many things like last many years tax returns of the company and the candidates W2 and paystubs, job location, client contracts, office location inspection, and also how many H1B and and how many Citizens are being employed. And also salaries of all other employees, and if they are doing this porting for all, or only in one case. His position for future EB3 was also questioned if its not needed anymore. I really dont know what happened, but heard that he had to leave the company in bad terms. He atleast had a stable job for many years, and now he is in the market looking for one.

I've just checked this information with my lawyer, who is from a big firm if there is any risk to convert from EB3 to EB2 porting in same company and he says audit is very possible as it involves doing many things.

Please let me know
1. if you faced or know any such incidents, or is this an isolated incident,
2. What risks do you see if I do with same employer. The company is not so strong. Its a desi consultancy. And there are layoffs recently in the same type of jobs where GC is reqd to be filed.
3. I understand it is almost guaranteed to get notice for audit and inspection of many things. So is it possible to withdraw the case in that scenario. In that case will the audit also be cancelled. Or they will still do. One of the big risks may be H1B memo that does not permit people working at client sites just like in a staffing company. There must be a employer employer relationship supervising the job,as per the memo.
4. It is hard to leave current employer working for 5 years, as it is very straight to get approved in EB3 even if little late for 2 more years. Also the job market is so tight and new employer may not be as good as exisiting one. So what are the risks involved if trying for future employment. And then port. If company profile is not good, then GC can be in problem. If applying for future employment, will the company be questioned for recent layoffs.
5. Any other inputs appreciated. Please dont suggest to leave current employer, as I have my EAD. I know people who were asked to show last 1-10 years of W2s and paystubs in GC interviews and H1B interviews these days. If you look at Hyd consulate website, for H1B, they are asking many things.

Thank You,
Bobby.

veni001
02-12-2011, 10:15 AM
Hi,
One of my friend's friend was trying this EB3 to EB2 porting within the same employer, and his job duties have changed considerably more than 50%. His labor got cleared with no issues, but his case got into issues at 140 stage, and the company got a audit notice it seems and they wanted to check many things like last many years tax returns of the company and the candidates W2 and paystubs, job location, client contracts, office location inspection, and also how many H1B and and how many Citizens are being employed. And also salaries of all other employees, and if they are doing this porting for all, or only in one case. His position for future EB3 was also questioned if its not needed anymore. I really dont know what happened, but heard that he had to leave the company in bad terms. He atleast had a stable job for many years, and now he is in the market looking for one.

I've just checked this information with my lawyer, who is from a big firm if there is any risk to convert from EB3 to EB2 porting in same company and he says audit is very possible as it involves doing many things.

Please let me know
1. if you faced or know any such incidents, or is this an isolated incident,
2. What risks do you see if I do with same employer. The company is not so strong. Its a desi consultancy. And there are layoffs recently in the same type of jobs where GC is reqd to be filed.
3. I understand it is almost guaranteed to get notice for audit and inspection of many things. So is it possible to withdraw the case in that scenario. In that case will the audit also be cancelled. Or they will still do. One of the big risks may be H1B memo that does not permit people working at client sites just like in a staffing company. There must be a employer employer relationship supervising the job,as per the memo.
4. It is hard to leave current employer working for 5 years, as it is very straight to get approved in EB3 even if little late for 2 more years. Also the job market is so tight and new employer may not be as good as exisiting one. So what are the risks involved if trying for future employment. And then port. If company profile is not good, then GC can be in problem. If applying for future employment, will the company be questioned for recent layoffs.
5. Any other inputs appreciated. Please dont suggest to leave current employer, as I have my EAD. I know people who were asked to show last 1-10 years of W2s and paystubs in GC interviews and H1B interviews these days. If you look at Hyd consulate website, for H1B, they are asking many things.

Thank You,
Bobby.

Yes, EB GC process (EB1/EB2/Eb3/EB4/EB5) has lot of hurdles to clear before an employer can get PERM certification and i140 approval. Especially in tough times like know( 10% unemployment rate) both DOL and USCIS are trying their best to make sure that the employers are not misrepresenting the facts.

Example: Removing the approved EB3 position and adding new EB2 position to their payroll...

Check this out (http:///2011/01/eb3-to-eb2-porting-with-same-current.html)

Robert Kumar
02-12-2011, 12:40 PM
EB3 to EB2 Porting with same (current) employer: Not a good idea US Non-Immigrants: Home to All Non Immigrants (http:///2011/01/eb3-to-eb2-porting-with-same-current.html)

In this link it appears they have listed some of the problems faced by one guy.
So does it mean there is no one with same employer changing from EB3 to EB2.
Apart from wage reqmts, looks like lots of internal documentation is also needed, and planned a lot earlier.

Anybody who has successfully done this, please share your experiences and how you did. Please help.
In any case please do not spread this to employers who can only get scared even if there is some chance for someone. I think we can still try.

Once again, please let me know if it is possible to withdraw the case if audit happens.
Can employer say "OK, Audit, so we want to withdraw the case, and we dont want audit". Is is possible.

Wehallovercome2006
02-12-2011, 01:01 PM
I have heard similar rumblings that has recently surfaced within our company. Our company was looking to upgrade cases for many employees and had started PERM for the same. But all of the sudden they have stopped recruitment for these PERMs after running into issue with an employee's I-140. USCIS asked them similar questions as you mentioned. Our lawyer suggested reconsidering all the upgrades because they believe this would happen more as time progress. When it was one in many cases, it was fine. But when USCIS started seeing this happening in bulk by a company, it is a certain red flag.

I think it similar to lot of filings that bodyshops use to do for H1Bs and eventually now they are in employer-employee relationship mess. Similar thing would eventually happen with these EB3 to EB2 upgrades.

Hi,
One of my friend's friend was trying this EB3 to EB2 porting within the same employer, and his job duties have changed considerably more than 50%. His labor got cleared with no issues, but his case got into issues at 140 stage, and the company got a audit notice it seems and they wanted to check many things like last many years tax returns of the company and the candidates W2 and paystubs, job location, client contracts, office location inspection, and also how many H1B and and how many Citizens are being employed. And also salaries of all other employees, and if they are doing this porting for all, or only in one case. His position for future EB3 was also questioned if its not needed anymore. I really dont know what happened, but heard that he had to leave the company in bad terms. He atleast had a stable job for many years, and now he is in the market looking for one.

I've just checked this information with my lawyer, who is from a big firm if there is any risk to convert from EB3 to EB2 porting in same company and he says audit is very possible as it involves doing many things.

Please let me know
1. if you faced or know any such incidents, or is this an isolated incident,
2. What risks do you see if I do with same employer. The company is not so strong. Its a desi consultancy. And there are layoffs recently in the same type of jobs where GC is reqd to be filed.
3. I understand it is almost guaranteed to get notice for audit and inspection of many things. So is it possible to withdraw the case in that scenario. In that case will the audit also be cancelled. Or they will still do. One of the big risks may be H1B memo that does not permit people working at client sites just like in a staffing company. There must be a employer employer relationship supervising the job,as per the memo.
4. It is hard to leave current employer working for 5 years, as it is very straight to get approved in EB3 even if little late for 2 more years. Also the job market is so tight and new employer may not be as good as exisiting one. So what are the risks involved if trying for future employment. And then port. If company profile is not good, then GC can be in problem. If applying for future employment, will the company be questioned for recent layoffs.
5. Any other inputs appreciated. Please dont suggest to leave current employer, as I have my EAD. I know people who were asked to show last 1-10 years of W2s and paystubs in GC interviews and H1B interviews these days. If you look at Hyd consulate website, for H1B, they are asking many things.

Thank You,
Bobby.

veni001
02-12-2011, 01:49 PM
EB3 to EB2 Porting with same (current) employer: Not a good idea US Non-Immigrants: Home to All Non Immigrants (http:///2011/01/eb3-to-eb2-porting-with-same-current.html)

In this link it appears they have listed some of the problems faced by one guy.
So does it mean there is no one with same employer changing from EB3 to EB2.
Apart from wage reqmts, looks like lots of internal documentation is also needed, and planned a lot earlier.

Anybody who has successfully done this, please share your experiences and how you did. Please help.
In any case please do not spread this to employers who can only get scared even if there is some chance for someone. I think we can still try.

Once again, please let me know if it is possible to withdraw the case if audit happens.
Can employer say "OK, Audit, so we want to withdraw the case, and we dont want audit". Is is possible.

That's not rue, as long as the EB2 position is "real", when i say real means "well documented" employer can pursue PERM for one of his employees in EB3 by promoting him/her to tat position(assume they qualify). At the same time the employer need to document what happens with the current EB3 position.

Any denial/withdrawal by employers with DOL/USCIS will be well documented, these actions (withdrawn/denial/approval) will definitely have impact on future filings.

gc_check
02-12-2011, 03:47 PM
Hi,
One of my friend's friend was trying this EB3 to EB2 porting within the same employer, and his job duties have changed considerably more than 50%. His labor got cleared with no issues, but his case got into issues at 140 stage, and the company got a audit notice it seems and they wanted to check many things like last many years tax returns of the company and the candidates W2 and paystubs, job location, client contracts, office location inspection, and also how many H1B and and how many Citizens are being employed. And also salaries of all other employees, and if they are doing this porting for all, or only in one case. His position for future EB3 was also questioned if its not needed anymore. I really dont know what happened, but heard that he had to leave the company in bad terms. He atleast had a stable job for many years, and now he is in the market looking for one.

I've just checked this information with my lawyer, who is from a big firm if there is any risk to convert from EB3 to EB2 porting in same company and he says audit is very possible as it involves doing many things.

Please let me know
1. if you faced or know any such incidents, or is this an isolated incident,
2. What risks do you see if I do with same employer. The company is not so strong. Its a desi consultancy. And there are layoffs recently in the same type of jobs where GC is reqd to be filed.
3. I understand it is almost guaranteed to get notice for audit and inspection of many things. So is it possible to withdraw the case in that scenario. In that case will the audit also be cancelled. Or they will still do. One of the big risks may be H1B memo that does not permit people working at client sites just like in a staffing company. There must be a employer employer relationship supervising the job,as per the memo.
4. It is hard to leave current employer working for 5 years, as it is very straight to get approved in EB3 even if little late for 2 more years. Also the job market is so tight and new employer may not be as good as exisiting one. So what are the risks involved if trying for future employment. And then port. If company profile is not good, then GC can be in problem. If applying for future employment, will the company be questioned for recent layoffs.
5. Any other inputs appreciated. Please dont suggest to leave current employer, as I have my EAD. I know people who were asked to show last 1-10 years of W2s and paystubs in GC interviews and H1B interviews these days. If you look at Hyd consulate website, for H1B, they are asking many things.

Thank You,
Bobby.

Too many IF's .. It all depends how genuine the requirement is and if the Employer is willing to support (They will, if they have all docs, requirments, etc clean) all through the process. If Employer is strong, then he can fight through with proper legal counsel and if the requirement is genuine - why not try.. Having said that, many big/small good companies, with clean record, genuine req, do not process EB2 even though you can qualify / justify the job req, take the easy route and go for EB3... @least my experience :mad: now used AC21 few years back and client / Fortune 20 absorbed into their payroll as direct employee. No issue from previous employer as they are direct vendor and the contract had option to hire if needed. I did not ask for EB2. At least know one colleague (EB3 Worldwide/Canada) was told Job might not qualify...

snathan
02-12-2011, 09:04 PM
Too many IF's .. It all depends how genuine the requirement is and if the Employer is willing to support (They will, if they have all docs, requirments, etc clean) all through the process. If Employer is strong, then he can fight through with proper legal counsel and if the requirement is genuine - why not try.. Having said that, many big/small good companies, with clean record, genuine req, do not process EB2 even though you can qualify / justify the job req, take the easy route and go for EB3... @least my experience :mad: now used AC21 few years back and client / Fortune 20 absorbed into their payroll as direct employee. No issue from previous employer as they are direct vendor and the contract had option to hire if needed. I did not ask for EB2. At least know one colleague (EB3 Worldwide/Canada) was told Job might not qualify...

What is the incentive they are getting for fighting. In fact its good for them if you are stuck in EB3. You want them to spend money, risk of USCIS audit and file for EB2. So you can quit the job once you get the GC...:D

veni001
02-12-2011, 09:13 PM
What is the incentive they are getting for fighting. In fact its good for them if you are stuck in EB3. You want them to spend money, risk of USCIS audit and file for EB2. So you can quit the job once you get the GC...:D

Employment is at will (both ways), so no guarantee. Nothing against employer or employee but one suggestion is make sure both employee and employer save their back(s) when starting Employment Based GC process, whether it is a fresh filing or porting!! This is very important especially when the unemployment rate in this country is at historic high.

vhd999
02-12-2011, 10:50 PM
Initially, my employer has shown lot of interest and willingness when I requested for filing a PERM application in EB2. When the attorney explained various steps and details about advertisements and the possible audits, the exuberance has gone down significantly.

As an employee, you have to have lot of intellectual and emotional capital built in order for your employer to support you in the porting process.

What is the incentive they are getting for fighting. In fact its good for them if you are stuck in EB3. You want them to spend money, risk of USCIS audit and file for EB2. So you can quit the job once you get the GC...:D

Wehallovercome2006
02-13-2011, 11:26 AM
As long as GC is not approved, it is at will but once it is approved, the employee must have a good-faith intention to work for the employer , and the employer must have a good-faith intention to employ the employee. Thumb rule is atleast 1 year.

Employment is at will (both ways), so no guarantee.

Robert Kumar
02-13-2011, 10:44 PM
That's not rue, as long as the EB2 position is "real", when i say real means "well documented" employer can pursue PERM for one of his employees in EB3 by promoting him/her to tat position(assume they qualify). At the same time the employer need to document what happens with the current EB3 position.

Any denial/withdrawal by employers with DOL/USCIS will be well documented, these actions (withdrawn/denial/approval) will definitely have impact on future filings.

I am not sure about GC withdrawls and if they will be documented, but I know H1B withdrawls are definitely documented. If you see the public H1B database for each employer, you will see some cases as withdrawn. So they are documenting it.
Looks like it is too much headache for employers and their lawyers dont advise them it seems. Good for both.

veni001
02-13-2011, 10:55 PM
I am not sure about GC withdrawls and if they will be documented, but I know H1B withdrawls are definitely documented. If you see the public H1B database for each employer, you will see some cases as withdrawn. So they are documenting it.
Looks like it is too much headache for employers and their lawyers dont advise them it seems. Good for both.

Robert Kumar,
I was referring to PERM and i140 denial/withdrawals.
Thanks

greencardfever
02-14-2011, 03:30 AM
Thank you all for the valuble information on the EB3 to EB2 porting topic.

I'm trying to port my EB3 application to EB2. However, my EB3 application was filed by my previous employer, X. I invoked AC21 and moved to my current employer, Y. Now I want to use experience gained at Y towards the new EB2 application with the EB3 priority date (since I only had 4 years of experience when changing from X to Y, and the job description of the EB2 application, at Y, requires 5 years + BS).

Are the issues discussed above regarding "EB3 to EB2 porting with the same / current employer" applicable to my situation as well?

I would really appreciate it if you could please answer the above question. Thanks in advance!

veni001
02-14-2011, 07:56 AM
Thank you all for the valuble information on the EB3 to EB2 porting topic.

I'm trying to port my EB3 application to EB2. However, my EB3 application was filed by my previous employer, X. I invoked AC21 and moved to my current employer, Y. Now I want to use experience gained at Y towards the new EB2 application with the EB3 priority date (since I only had 4 years of experience when changing from X to Y, and the job description of the EB2 application, at Y, requires 5 years + BS).

Are the issues discussed above regarding "EB3 to EB2 porting with the same / current employer" applicable to my situation as well?

I would really appreciate it if you could please answer the above question. Thanks in advance!

Greencardfever,
For the matter of fact, it doesn't matter current employer/new employer. If a employer is going file PERM labor/i140 (EB1/EB2/EB3/EB4) then he/she should make sure that he got all the ground covered, even if DOL ask for supervised recruitment process.

Sunx_2004
02-14-2011, 08:27 AM
You can not use experience gained at current employer for EB2 filing...
I may be wrong, Please check with your lawyer...

Thank you all for the valuble information on the EB3 to EB2 porting topic.

I'm trying to port my EB3 application to EB2. However, my EB3 application was filed by my previous employer, X. I invoked AC21 and moved to my current employer, Y. Now I want to use experience gained at Y towards the new EB2 application with the EB3 priority date (since I only had 4 years of experience when changing from X to Y, and the job description of the EB2 application, at Y, requires 5 years + BS).

Are the issues discussed above regarding "EB3 to EB2 porting with the same / current employer" applicable to my situation as well?

I would really appreciate it if you could please answer the above question. Thanks in advance!

werc
02-14-2011, 09:09 AM
Not unless the job is 50% different. If the job you gained your exp at is different(50 %) than the job you are filing your PERM for, then you are good to go.

Robert Kumar
02-14-2011, 11:38 AM
Not unless the job is 50% different. If the job you gained your exp at is different(50 %) than the job you are filing your PERM for, then you are good to go.

One of my friend has his case with one big lawfirm (starts with M) & is in the east coast.
He says he lawyer says "this 50% job different scene is usually taken by USCIS as not straight".
I do not want to 100% believe this, but if any of you have the same lawfirm (please do not name any law firm on their views) or well reputed one, please do check what is involved and let us know.

snathan
02-14-2011, 11:47 AM
Thank you all for the valuble information on the EB3 to EB2 porting topic.

I'm trying to port my EB3 application to EB2. However, my EB3 application was filed by my previous employer, X. I invoked AC21 and moved to my current employer, Y. Now I want to use experience gained at Y towards the new EB2 application with the EB3 priority date (since I only had 4 years of experience when changing from X to Y, and the job description of the EB2 application, at Y, requires 5 years + BS).

Are the issues discussed above regarding "EB3 to EB2 porting with the same / current employer" applicable to my situation as well?

I would really appreciate it if you could please answer the above question. Thanks in advance!

1. All the EB2 I-140 are being Scrutinized.
2. You can not use the experience gained with the current employer for your EB2 unless the new job is 50% different.
3. USCIS might ask more informaiton what would happened to the old EB3 job if you are moving to EB2. If so, the employer needs to prove the validity of your job. Otherwise the USCIS might question your employer about the validity of your current EB3 since the job no longer exist. Remember the GC is for future job and now you are going to tell the USCIS - the job is not going to be there. So if you are porting from EB3-EB2, lot of risks involved.

Since so many have started the porting process it invited the USCIS Scrutiny like the sub-labor. So you and your employer will have to decide if the risk is worth. As long as everything is well documented and the job is genuine, you wouldn't have any issues.

Robert Kumar
02-14-2011, 05:36 PM
1. All the EB2 I-140 are being Scrutinized.
2. You can not use the experience gained with the current employer for your EB2 unless the new job is 50% different.
3. USCIS might ask more informaiton what would happened to the old EB3 job if you are moving to EB2. If so, the employer needs to prove the validity of your job. Otherwise the USCIS might question your employer about the validity of your current EB3 since the job no longer exist. Remember the GC is for future job and now you are going to tell the USCIS - the job is not going to be there. So if you are porting from EB3-EB2, lot of risks involved.

Since so many have started the porting process it invited the USCIS Scrutiny like the sub-labor. So you and your employer will have to decide if the risk is worth. As long as everything is well documented and the job is genuine, you wouldn't have any issues.

What about experiences with regular companies, and not so hi-fi.
Is there a risk in here, if everything is clean. Does company profile matter

RamBihari
02-14-2011, 08:31 PM
No risk to try it out. Worst that can happen in porting is that you get denied> you still keep eb3.

Wehallovercome2006
02-15-2011, 09:01 AM
No risk to try it out. Worst that can happen in porting is that you get denied> you still keep eb3.

This is not correct. Worst case is USCIS would think your future EB3 position is not required anymore, so does your EB3- I-485. Other than that they will examine your eligibilty for new 50% different EB2 job and on what basis were you considered for this job.

Robert Kumar
02-15-2011, 09:07 AM
This is not correct. Worst case is USCIS would think your future EB3 position is not required anymore, so does your EB3- I-485. Other than that they will examine your eligibilty for new 50% different EB2 job and on what basis were you considered for this job.

This looks to be true. If we get a query, then questions may come about "What about EB3 future job, then". If employer says not needed, then thats probably gone.
And if they are not convinced with EB2's requirements, then even this gets into trouble.

Sorry I may be wrong.. but this is just simple thinking. Better to check with an exp. attorney.