First, there really isn't any such thing as whether r not a PERSON qualifies for EB-2; it's the job being offered that does or doesn't qualify, because the job's minimum requirements are what determines EB-2 eligibility.
For example, if a company has five people employed in the same job, and three (including the person for who they want to file a green card case) had Master's degrees when hired, one more had a Bachelor's degree and five years' experience when hired, and one had a Bachelor's degree and four years' experience when hired, this wouldn't be an EB-2 job and they couldn't file the case that way, even though the beneficiary has a Master's because that last person had less than a Master's or the equivalent Bachelor's plus five years, meaning that the minimum requirement wasn't sufficient.
Assuming this isn't an issue here, I have to agree with your employer - same-company experience generally can't be used to qualify a beneficiary unless that experience was obtained in a job 50% or more different from the job for which the employer is petitioning. IF this is your situation - they are petitioning for a different job (>50%) form the one in which you gained all the experience, this earlier experience can be used and the case filed under EB-2 - but this is a very difficult (and risky) argument to make.
Sorry I don't have better news.
Yes. Experience gained with the petitioning employer cannot be used to meet the requirements for a position for which a Labor Certification is being filed.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.
My colleagues have provided excellent comments. You need to discuss the options with your employer's attorney who can advise as to what other possible options you have to secure immigration benefits. Good luck.
Legal disclaimer: The statement above is provided by CC Abbott is based on general assistance and not intended to be a legal opinion because not all the facts are provided. The person requesting information and all others reading the answer should retain an attorney who is permitted by the state bar within the jurisdiction who can examine the complete facts and provide a legal opinion on your case. All information provided in the above answer and other information provided by CC Abbott does not create an attorney/client relationship within any state of Federal law.
I agree with my colleagues, you should speak with your employer's attorney to investigate alternative options in meeting your ultimate goals.
The statement above is only for general knowledge purposes and at no time intended to be a legal opinion. The individual posting the question and those reading should always obtain the advice of a qualified attorney. No attorney/client relationship is established.
Are Company A outside the U.S. and Company A inside the U.S. related companies? If so you may be eligible as a multinational manager in the EB-1-3 category. to determine this or EB-2 eligibility would require a detailed review of your skills and the proposed job.
Lynne R. Feldman, Attorney at Law
Concentrating in Immigration and Nationality Law
2221 Camino Del Rio South, Suite 201
San Diego, CA 92108
phone: (619) 299-9600, facsimile: (619) 923-3277
Formerly Adjunct Professor -- Immigration law
University of Illinois College of Law