1. There is risk in redoing PERM as the US job market must be tested again
A reader asks:
I am struggling with whether to switch from an individual contributor (IC) to a manager. I am currently working as a Financial Analyst, and my immigration petition’s priority date (PD) is October 2022. Recently, I was offered a promotion, but if I take it, I will need to redo the PERM. What is the current PERM policy like? Is there any risk in redoing it? Would reapplying for PERM just potentially delay getting the green card? I heard that if the PD has been current for over one year, it might no longer be possible to renew the H-1B?
Alan Lee, Esq. answers:
I will assume for purposes of your question that you are from China since you otherwise would have resolved your situation already with an October 2022 priority date in either the EB2 or EB-3 categories. Moving to managerial level from being a financial analyst when the filing of the I-485 adjustment of status application and passage of 180 days have not yet been done (we assume that the I-140 petition is approved) most probably involves redoing the labor certification. The risk in redoing a PERM labor certification process is that the US job market must be tested again and if there are able, willing, qualified, and available US workers for the advertised position, the labor certification application may not be capable of approval. You are correct that when a priority date has been current for one year, the ability to continually extend H-1B status past the standard six years is no longer allowed if you have not filed for adjustment. In your situation, you may decide that the safer approach is to continue being a financial analyst and obtaining permanent residence under the tunnel. Even where the I-140 is approved, I-485 filed and 180 days elapsed since the time of filing, job porting would involve you and the company demonstrating to USCIS that the new position is in the same or similar occupation.
2. Will my job duties change affect my I-485 submission?
A reader asks:
I started in data-related work, now I support SDEs and want to switch fully into SDE in my team. My I-140 has been approved, and my priority date (PD) is about a year away. The job location and entity remain the same, but job duties will change. My lawyer said it’s fine, HR said the overlap is 50%, so no need for new PERM or H-1B amendment. My boss thinks it is not a big issue. Will this affect my I-485 submission or lead to an RFE or issues at the interview?
Alan Lee, Esq. answers,
This is an area to be careful about. If the job title changes and duties are different from the duties as outlined in the labor certification, this could be a concern with USCIS as constituting an uncertified job position. You may wish to discuss with your lawyer and HR the changes and how they intend to present the changes to USCIS.