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Eb2 Application - Eligible Experience?

Discussion in 'Filing for AOS with an approved I-140' started by Iggy614, Sep 7, 2015.

  1. Iggy614

    Iggy614 New Member

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    Hi,

    Would full-time unpaid experience under an OPT qualify for the minimum amount of experience required under an EB2 application (for Bachelors + 5 years of experience).

    Thanks.
     
  2. Senram

    Senram Member

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    There is always a possibility of acceptance under certain conditions. But more risk than reward. It is safer to apply Eb3. Also Eb3-I may become equal to Eb2-I in couple of years as the porting is increasing and spill over is decreasing. So you have to think that is it really worth to apply in eb2
     
  3. Kamakazee

    Kamakazee Super Moderator

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    To apply for EB2, the job requirement will need to be Masters. The candidate's qualifications and experience come later.
     
  4. Mayur

    Mayur Well-Known Member

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    Hello Kamakazee, I beg to differ , I don't think Masters should be there as a job requirement ,

    My understanding from the below is an advanced degree, please let me know what you think

    http://www.uscis.gov/eir/visa-guide...-2-requirements-advanced-degree-professionals

    Quoting a line from USICS site

    Note: If qualifying based on a Bachelor’s degree followed by 5 years of progressive experience, your Bachelor’s degree must be a direct equivalent (i.e. a four year degree) to a U.S. Bachelor’s degree.
     
  5. Kamakazee

    Kamakazee Super Moderator

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    That is the equivalent qualification of the candidate, I am not denying that. I am talking of the job requirements.
     
  6. Mayur

    Mayur Well-Known Member

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    I now get it , was seeing some old posts , I quote Ron here

    "If the job doesn't need an advanced degree, then it doesn't qualify for EB2. There are plenty of jobs that require a bachelor's and more than five years of experience that clearly are not EB2 material. Right now, if you don't list the advanced degree as the primary requirement on the PERM, the USCIS will almost certainly deny the EB2 petition."

    Thanks for your help , I am now clear :)
     
  7. DonDraper

    DonDraper Guru

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    EB2 requirements to be at a minimum of

    Bachelors + 5 years experience
    or
    Masters + 0 years experience
     
  8. Honest_Guy

    Honest_Guy Guru

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    There is a difference between DOL and USCIS on what constitutes EB2.

    Both departments agree that EB2 means Bachelors + 5.
    However with masters both departments disagree, with DOL being little strict. For DOL eb2 means masters + 3 years experience. However for USCIS it is enough to have masters.

    Again there is not EB2 or EB3 with DOL, but this is to prove that a Job requiring Bach + 5 years is equivalent to Masters + 3 years for job purpose.
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    No, the regulation explicitly requires paid experience.
     
  10. DonDraper

    DonDraper Guru

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    Iam not sure where you are getting this info but the definition of minimum requirement for EB2 across the board is B.S +5 years or M.S +0 years. Yes, there is a possibility that M.S + 0 years job requirement might trigger a flag that the position is fake
     
  11. Honest_Guy

    Honest_Guy Guru

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    This was info i got from attorney at Murthy.They said that DOL and USCIS look at Bachelor + 5 in a different way.
    DOL looks at it from a job perspective, and USCIS looks at it from experience perspective.
    And DOL does not care about EB2 or EB3, they only care about job codes and the experience needed for that job code.
     
  12. Iggy614

    Iggy614 New Member

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    Ron, thank you for your response.

    Based on my conversation with a number of attorneys, some agree with your statement above while others think that unpaid experience can be counted towards the years of experience. My follow up questions are as follows:

    (1) can you guide me to the regulation that actually requires payment to be considered as qualifying experience?
    (2) is this the same for an EB3 (i.e. only paid work experience will be considered)?

    Thank you again for all your help.
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    This is from Kurzban's Immigration Sourcebook, at page 1288:

    (f) Alien's experience gained in a parent or relative's home cannot be regarded as a bona fide employer-employee relationship even if alien received salary. Phelps, 88-INA-214 (1989) (en banc).

    (g) Experience which is unpaid or paid “off-the-books” or “under-the-table” can be qualifying experience. B&B Residential Facility, 01-INA-146 (July 16, 2002). However, there are serious proof problems and an affidavit from the applicant alone is insufficient. Id.

    (h) Illegal employment may be counted toward the experience requirements. The CO should not reject an LC because a former employer is reluctant to document the illegal employment. Lendy Muller, 98-INA-237 (Sept. 17, 1999) [CO should consider alternatives to a letter from the employer because “previous employers might be reluctant to document that an alien was illegally employed.”]. But see Anabelo and Dorothy Borja, 06-INA-54 (Mar. 13, 2007) [employer's refusal to comply with federal and state tax law on the grounds that the beneficiary will report her own income in the future was insufficient to make the position lawful under former §656.20(c)(7)]; Annie and Ronald Baldwin, 05-INA-64 (Dec. 14, 2006) [questioning whether the position of head housekeeper really existed where the employer's credibility was called into question due to her employment of the undocumented prospective employee].​
     
  14. Iggy614

    Iggy614 New Member

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    Ron, thank you so much for posing this.

    Then, according to the above, unpaid work experience can be included, but to prove this is very difficult. Correct?

    Thank you so much.
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The USCIS simply won't accept it.
     

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