H Visa Employer sponsor

[lerouge123]

Hi,
My employer sponsored me for a greencard. My I140, parole and work permit have all been approved. My 485 is in Abeyance!. My question is with employment class the lawyer put me in. It is the category 3. I would not care were it not for the fact that cat 2 is current in visa numbers.
I did the labor certification and the employer advertised a job description etc...
I have a master's degree and more than 12 years experience in Engineering.
When I asked the lawyer why he did not put me in category 2, he said the job description did not ask for a master's only a bachelor's and 4 years experience.
I have not gone back to him yet but when I researched a bit the DOL says that the job description must not be restrictive such as asking for foreign languages etc.
Also on the INS site the categories are defined in terms of individuals not jobs!
I am questioning basically his answer. The job description being what it is, that does not change the fact that I do have a master's degree. Is it required that the job must have required a master's for me to be sponsored as a category 2 or can the employer advertise and try to fill the job with lower requirements(cat 3) and fail then higher me and sponsor me as cat 2?
Process questions: Where does the category actually get determined: at the labor certification time or after that when I file for the I140 and I485?
Now having been processed as a Cat 3, is there a process whereby the lawyer can file an amendment to change my case to a cat 2 if is a possibility?

Thanks
Lerouge

 

[Michael Wechsler]

Hi,
My employer sponsored me for a greencard. My I140, parole and work permit have all been approved. My 485 is in Abeyance!. My question is with employment class the lawyer put me in. It is the category 3. I would not care were it not for the fact that cat 2 is current in visa numbers.
I did the labor certification and the employer advertised a job description etc...
I have a master's degree and more than 12 years experience in Engineering.
When I asked the lawyer why he did not put me in category 2, he said the job description did not ask for a master's only a bachelor's and 4 years experience.
I have not gone back to him yet but when I researched a bit the DOL says that the job description must not be restrictive such as asking for foreign languages etc.
Also on the INS site the categories are defined in terms of individuals not jobs!
I am questioning basically his answer. The job description being what it is, that does not change the fact that I do have a master's degree. Is it required that the job must have required a master's for me to be sponsored as a category 2 or can the employer advertise and try to fill the job with lower requirements(cat 3) and fail then higher me and sponsor me as cat 2?
Process questions: Where does the category actually get determined: at the labor certification time or after that when I file for the I140 and I485?
Now having been processed as a Cat 3, is there a process whereby the lawyer can file an amendment to change my case to a cat 2 if is a possibility?

Thanks
Lerouge

To begin, here are the categories for filing, which are determined as per the rules promulgated by the INS:

Eligibility

There are five categories for granting permanent residence to foreign nationals based on employment skills. If you are an employer and are unsure which employment category applies to the foreign national you wish to sponsor, or if you are a foreign national and want more information on which category matches your particular situation, click one of the employment categories:

EB-1 Priority workers

• Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics
• Foreign national that are outstanding professors or researchers
• Foreign nationals that are managers and executives subject to international transfer to the United States

EB-2 Professionals with advanced degrees or persons with exceptional ability

• Foreign nationals of exceptional ability in the sciences, arts or business
• Foreign nationals that are advanced degree professionals
• Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved. Read more about this particular program.

EB-3 Skilled or professional workers

• Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category)
• Foreign national skilled workers (minimum two years training and experience)
• Foreign national unskilled workers

EB-4 Special Immigrants

• Foreign national religious workers
• Employees and former employees of the U.S. Government abroad

EB-5 Immigrant Investors

 

[Michael Wechsler]

You should speak to the lawyer, but part of the reason why you are being considered for work has to do with the job offered, not your particular qualifications in general. This is my understanding. So let's say you spoke 25 languages and had specialties in 17 different health sciences but you were being considered for a specific job in computer programming -- how and why should these other factors about you play a role in determining whether to allow you to enter into the country to be sponsored by a company who is seeking someone to do computer programming? What if you couldn't do computer programming? Then you wouldn't be qualifying for the job, no matter how many other unrelated skills you have. Thus part of what is going on here is looking at the job description and seeing whether you qualify in order to be sponsored to be brought here for a job.