1. Under most circumstances, a new PERM filing must be made when the position changes
A reader asks:
I am on an H-1B visa. I feel that I have been in a rut in my current position for many years and have reached my career ceiling. I want to switch to a different career path for a fresh start. My company now has an open position at the same level as my current one but with different job responsibilities. My current role involves managing a department at the headquarters and its subordinate branches. The open position would be as the general manager of a subsidiary, overseeing all operations and department managers there, but only a small portion (20%) aligns with my current job responsibilities. I have an MBA and feel qualified for this role, which seems like a good opportunity. However, my green card application PERM was filed based on my current position. If I switch to this internal role, which is similar but not identical to my PERM application, would I need to refile for PERM?
Alan Lee Esq. answers,
Under most circumstances, a new PERM filing must be made when the position changes. The exception is when the I-140 petition is approved and circumstances have changed after the I-485 adjustment of status application has been filed and 180 days have elapsed since that time. If the circumstance is a change of employment to a position which is in the same or similar occupation, both the PERM and I-140 petition can be kept and the adjustment of status application continue. That is the AC-21 portability law allowing a “same or similar” job switch. If that fits your situation, you may be able to port your case as both positions as described appear to be managerial, and it would be up to the company and its representative to bring out the most convincing arguments to USCIS that the job is in a similar occupation perhaps by arguing that the roles are in the same occupational classification; or that job duties and the SOC code are similar, etc.
2. It is not necessary after extending the H-1B status for you to leave the US and obtain a visa in your passport
A reader asks:
I applied for EB-3 professional immigration. After submitting I-485, the priority date retrogressed, so EB3 is no longer current. My Priority Date is May 2021. The current H-1B stamp will expire in three months. Should I go to Canada or somewhere like that to renew it early next year?
Alan Lee Esq. answers,
It is not necessary after extending the H-1B status for you to leave the US and obtain the visa in the passport. The visa is only for travel purposes. Alternatively, you could also file for advance parole if you need to travel (currently takes about 6+ months to process) since you have already filed for adjustment of status to permanent residence. If you do decide that you wish to travel under H-1B status, you should check the consular post that you wish to visit to see whether they will entertain third country nationals at the US consular post, and make sure that you have all your proper documentation according to the consular checklist. Please note that unless you have advance parole, you would not be allowed to return to the US without obtaining the H-1B visa in your passport.