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Company filling under EB 3 even i have MS + 2 yrs exp . Current salary is less than P W D,level 2 zone

Murrieta, CA |

Profile : BE in I and MS ( I ) from US univ . I have 2 - 3 yrs of experience before my current job . I have been working as a software engineer with my current employer for 3 years now with 65k p . a in CA riverside . My employer is filing EB 3 Green - card application so here is my questions - 1 . Can I file under EB - 2 category ? 2 . My attorney told me that the P W D coming around $ 87 k which is very much higher than my current salary . This 87 $ k is an level 3 zone and as per my attorney only level 3 and level 4 are eligible for EB 2 approval . I can still push my employer to increase my salary to level 2 which is 74 k . So applying with level 2 will be fine for applying for EB 2 application ? OR what about level 1 wage which $ 61 K is that safe ? should i go for EB 3 ?

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Attorney answers 4


An opening remark before I begin: if you are as smart as I think you are, then you will stop second-guessing your or your employer's attorney, for he or she knows the nature of the job being offered to you, as well as the nature of the particular industry as it relates not only to the PERM process with DOL, but am sure also the nature and rigid requirements of the I-140 process with USCIS which will (hopefully) follow the approval of the PERM. Having said that, let's begin:

1. Better not. What good will it do to you if the employer will not be able to demonstrate "ability to pay" the wage promised in the PERM application for the next, say 5 or 6 years?? remember, the AP requirement "attaches" in the year the PERM is filed and continues thereafter, until the alien finally attains permanent residence. Now, from the reading of the facts, AP seems to be the main obstacle with this employer.. Can you ask to see his latest tax returns and check the line that reads "net income after tax"? (Of course, add to that figure your annual salary.)

2. It will depend on the description of the job offered and the "normal" requirements for that particular job, as well as DOL's prevailing wage determination and also whether your employer will be able to live with it. Ask your attorney to explain to you the interplay and relation of these multiple variables more in depth.

Your attorney is basically right about he interplay of Level 3 and 4 salaries and the added job experience requirement which elevate a position to the EB-2 category. The question is again, will employer be able to meet the AP requirement for the next 2 years? (That's the amount of time needed to attain a green card on the EB-2 category, unless of course you are a native of India or China.

I hope this helps.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


I agree with Behar. Consult with a local immigration lawyer. I’m sorry, but my firm only handles personal injury cases.

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I agree with my colleague. You should consult an experienced immigration attorney for this matter. You may schedule a consultation with an immigration lawyer in your area, my firm is handling these matters in New York. If you would like free legal updates on these immigration issues you may sign up for our newsletter at .

Att. number 917-885-2261 This advice does not create an attorney client relationship. No specific legal advice may be offered by the lawyer until a conflicts check is undertaken. Information sent through a web form or via email may not be treated as confidential. Please accept my apologies for spelling mistakes. Law Office of Alena Shautsova


You should trust your employer's attorney as they know all the details of you and your employer's situation. It is not a good idea to try and "outsmart" the attorney or to assume you know better. Immigration laws are complex and there are many factors that have to be considered when making the decision on what category to file under. If your employer's attorney says that you do not have an case for an EB2 then you probably do not. It is not in the attorney's interest to make your life more complicated. They will advise you to pursue the visa category that you are most qualified for.

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