Q & A: Need to file GC under EB2 - Company norms forcing me to file EB3

Question: I have 4 Yr Bach Deg in Comp Sci Engg and close to 10 yrs Exp in the same company out of which 4.3 Yrs was in India. I was transferred to the US (now on L-1 'A' visa) in Aug '06 to the US through the same Employer and have been here since then. My company is skeptical to file my GC in EB2 stating that 5 yrs experience has to be gained before I was transferred to the US (which is considered my petitioning employer branch).

I want to understand how I can file under EB2? Should I wait until 10 yrs exp since I see this as one of the clauses?? OR
Should I file now and PORT into EB2 after 10 yrs Exp in the same company (counting India + US exp in the company) OR
USE any of MY Client accolades or awards since I manage a very CRITICAL portfolio)

Answer:  
 
Why are you not looking at the EB-1 Multinational Manager or Executive category? The requirements largely mirror those for the L-1A intra-company transfer.

With respect to EB-2, I may be able to clarify your company’s concerns. Notably, your EB-2 case is based on a prospective offer of employment, and experience gained in the job offered may NOT be used to qualify for the job. 

For example, let’s say you were transferred to the US in the position of Engineering Manager in 06, and have held this position since.  Now the company wishes to help you with your green card, and the prospective permanent job offer which is to serve as the basis of your green card case, is the position you have been occupying for the last five years or so, Engineering Manager.   You may NOT use your experience with the company in the job offered, ie, since your transfer to the US. 

This is prohibited, as the purpose of the labor certification process is to protect the American worker.  And so, if the law were set up to allow you to use experience in the job offered, it would give you an unfair advantage over the American worker. 

Now it may be possible to use your experience gained in India, but you have less than 5 years, which means you cannot qualify for a position with minimum requirements of a bachelor’s degree plus five years. 

Your options are to explore the EB-1 (best option, since there are no back logs!); or move into a different EB-2 position, that is substantially (at least 50%) different from the position you have been occupying since your transfer.  Under this second scenario, you could use the experience gained in the US!    

I can help you review your eligibility under the EB-1 category, if you can provide me with a copy of your last L-1A filing.  Please let me know if I may be of further assistance, and good luck! 

Best regards,

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com