Change of the level of job duties and EB2 or EB3 category

[Cindy0711]

Hi,
I have been in the same position for 6 years, and I got promoted from a lower level to a higher level 2 years ago. When I got promoted to work with more complex duties 2 years ago, the position description required a BA and 3 years of work experience. However, my employer wants to increase the work experience from 3 years to 5 years when preparing the job description for my green card process. As I know, EB2 requires MA or BA with 5 years of work experience. EB3 requires BA and 3 years of work experience.
Here are my questions:
1. When my employer decides which EB category should he file for me, should the years of work experience in my lower-level position and higher-level position a factor to be considered?
2. If the answer to Q1 is NO, may I know the reason?
3. If the answer to Q1 is YES, here is a follow-up question: my total work experience in the "same" job is 6 years,4 years in a lower-level position and 2 years in a higher-level position. When the employer decides under which category, EB2 or EB3, should he file, does he look for the total 6 years of work experience, which is more than the 5 years threshold in EB2, so he should choose EB2? Or, does he look for the 4 years of work experience, which is the number of work experience I had had before I worked for the higher-level position and which is more than the 3 years threshold in EB3 (but less than the 5 years threshold in EB2), so he should choose EB3?

In order to have a good discussion with my employer and attorney, I want to get some ideas before talking to them. Any feedback is very appreciated!

[scientist2016]

Experience gained while working for the position that you are currently in should not be counted towards the experience requirements for the posting. The logic is: You have been accepted to your current position (for which your employer is doing the PERM paperwork) without 5 yrs. experience. So in the job ad they cannot now ask for 5 yrs. experience. However, if they file for a future position requiring 5 yrs. experience, you do qualify. So the answer in short is: If your employer wants to file your I140 in EB2 then it is certainly possible (needs proper planning and tailoring of the job ad and requirements).

[Cindy0711]

Thank you for your response. It helps! I have another question related to the degree requirement. Due to the complexity of the job, my employer thinks an MA degree is more suitable for the job. When preparing the job ad for PERM, can my employer change the minimum requirement from "BA and 3 years of work experience" to "MA and 3 years of work experience"? If not, can he list "an MA degree is preferred" in the desirable requirement? Any feedback is very appreciated!

[scientist2016]

There is no rule stating that you should not advertise for a MA for an EB3 posting. However, whatever is listed in the job ad, you should be able to meet those requirements or else the PERM petition will be declined. For e.g., any expertise on a proprietary software you gained via your current employer cannot be used to eliminate external candidates.

[Cindy0711]

Thank you very much again for your response! I am more clear about the green card process than before. I have two questions here:
1. You mentioned an important point which I would like to get more information: any expertise on proprietary software you gained via your current employer cannot be used to eliminate external candidates. I want to know what if having certain expertise is a key to performing a job duty which is an essential function of the current position, and although I obtained the expertise through taking courses when I am in the position in order to be able to execute the assigned duty, my employer just does not have the ability to wait for a new employee who does not have the expertise to complete extensive training. In this case, can my employer list the expertise in minimum qualification? Or, what should my employer do to make sure that the PD does not miss the qualification which is associated with an essential job duty?

2. Besides, may I know that when my employer reviews the applications, do the applicants have to meet the minimum qualifications only or both minimum qualifications and desirable qualifications in order to be selected for an interview?

Thank you!!