QUESTION:

I have been sponsoring an employee for an H1b for 3 years. He has a bachelor’s degree and he had 2 years of experience before he came to work for me. Since he now had a bachelor’s degree and 5 years experience, can I sponsor him for an eb2 petition? I have been told that his experience working for me does not count towards the 5 years, but intuitively it doesn’t make sense.  That would mean that someone else can sponsor him for an eb2 but I can’t. Can you please explain this to me?

THE IMMIGRATION ANSWER MAN:

It is not just an issue of him using his experience. It is a question of what is the actual minimum requirement to perform in the position. In order to sponsor him under the EB2 category, the position has to have a minimum requirement of a masters degree or the equivalent (generally a bachelors and 5 year of post degree experience) to be able to perform the duties of the position. Since your employee has been working in the position for the past 3 years without a master’s degree or the equivalent, then clearly the job can be done without a master’s degree or the equivalent.

Under certain circumstances you may be able to sponsor the employer for a different position, if a master’s degree is required to perform the duties of the new position. And yes, other employees may be able to sponsor this foreign national for an EB2 for this position, if they can show that a master’s degree is a requirement to perform the duties of the position at their company.

In the meantime, if you file the PERM application early enough, you should be able to continue extending his H-1B until he is eligible to apply for the green card under the EB3 category.

For more information on the EB2 category, visit:

http://www.visalaw.com/05jun3/2jun305.html

For more information on the EB3 category, visit:

http://www.visalaw.com/05jun4/2jun405.html

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Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455. 

* Due to the volume of questions received, not all questions can be answered. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.