1. H-1B Transfer Petition Usually Takes About 2-4 Months
A reader asks:
Recently, I have changed my job, and I hope to hear the lawyer’s opinions about my H-1B and EB-2 green cards issues. 1. About H-1B. If I am in the current company but change positions, will it be affected? 2. About H-1B. If I go to a new company, how long will the transfer take? If I want to go back to my country, do I have to wait until the transfer is completed? 3. About EB-2. My priority date is March 2020 and is not current yet. Assuming my start date at the new company is six months away, can I ask the new company to start with EB-2 (PERM), if my boss agrees. 4. If the new company provides EB-1C, can my EB-2 PD be used directly? 5. Assuming that my position in the current company has changed, but the job itself does not change, will it affect my current EB-2 status? What kind of situation can be considered as no impact?
Arthur Lee Esq. answers,
Your questions will be answered in the order that you presented them: (1) typically, if your job changes within your company you will need to file an H-1B amendment. If you take on significant new job duties or work in a higher-level (i.e. promoted to management etc.) you will need to file an H-1B amendment. If your job title changes without significant change in your job duties, then you may be excused from filing an H-1B amendment. This may be somewhat complex and an experienced immigration lawyer would help; (2) An H-1B transfer petition typically takes about 2-4 months for USCIS to adjudicate. The case may be filed in about 2-3 weeks if your petitioner/lawyer prepares it expeditiously. You may also apply premium processing on your H-1B transfer to receive a decision or further action in 15 calendar days. You may begin working for your new employer once your transfer petition is properly receipted by USCIS. However, you risk falling out of status and unauthorized employment if your H-1B transfer petition is ultimately denied. In the alternate, you may continue to work with your current employer until your H-1B transfer petition to the new company is approved. It would be a good idea to wait until your H-1B transfer is approved before going overseas since a consular officer will want to see your valid H-1B status paperwork as well as proof that you are employed with your new H-1B petitioner; (3) Yes, your new company can start the PERM process for you at any time as long as they intend to employ you upon your receipt of a green card; (4) Your old priority date can be used so long as your old I-140 approval was not revoked for fraud, misrepresentation, or material error and your labor certification was not revoked or invalidated. That being said, your will need to have your new I-140 under the EB-1 category approved before you can apply for permanent residence via consul processing or adjustment of status. (5) If your position changes from your EB-2 position, but your duties and responsibilities do not change, you should generally still be able to use it as the basis for your green card application. As a rule, your new job can be “ported” to your green card case if 180 days after your I-485 is filed, you are working in a new position that is a “same or similar” occupation that was originally petitioned for you (assuming other eligibility criteria are met). Therefore, if you are in a different position with similar responsibilities, or elevated responsibilities (e.g. financial analyst -> financial manager) you may be eligible for porting to your new position under your approved EB-2 I-140.
2. You Cannot Work in the U.S. While Traveling in the U.S. and EB-3 is Waiting for Priority Date to Become Current .
A reader asks:
I applied for I-140 in China, it has been approved, and I am waiting for the schedule. I want to take my children to the United States, and I have already booked the air tickets, but when I just registered for EVUS, I encountered a problem. The question is, how do I report whether you are currently seeking employment in the U.S. or are you working in the U.S. without prior permission from the U.S. government? How do I answer that?
Arthur Lee Esq. answers,
On the question of whether you are currently seeking employment in the US or have worked in the US without prior permission, you should answer “no” assuming that you have never worked in the US without authorization. You have an approved I-140, and are waiting for your priority date to become current. This will be future employment for you. On this particular visit where you will take your children to the US as tourists, I assume that you will not be seeking employment. You will be there strictly for pleasure. Therefore, you can answer “no” and just visit the US without taking employment on this visit, and then move there on a permanent working basis on an immigrant visa once your priority date is current and you are successfully interviewed at the U.S. consulate.
3. Once 180 Days Elapse from the Filing of Your I-485, You May Port to a New Job in a Same or Similar Occupation.
A reader asks:
I have just submitted I-485 in the Bay Area for a month, but I feel that I may be fired. Now the market is generally uncertain whether I can find a new job within 60 days. In this case, if the USCIS does not process my case within 180 days, and then I find a similar job within 180 days, can I use I-485j port at that time?
Arthur Lee Esq. answers,
Yes. Once 180 days elapse from the filing of your I-485 application, you may port to a new job in a same or similar occupational classifications as the one that was the basis of your I-140 assuming your I-140 is approved or will ultimately be approved. However, please ensure that your job is indeed in the same or similar occupational classification. You can do this by comparing your new job title and responsibilities with your old job title and responsibilities. Look at your previous I-140 petition for your job title, responsibilities, and importantly, the SOC code of your old position. If your new job may fall into the same SOC code, then chances are that your job can be ported. If it is a natural career progression of your old position (e.g. computer systems analysts to computer systems managers) then your job is likely portable as well. If your job is in a “similar occupational classification,” meaning that your occupation shares essential qualities with the occupation on your I-140, then your job may be portable. As part of this evaluation, officers may consider various factors relating to the jobs such as the SOC codes assigned to the respective jobs; job duties; job titles; required skills and experience; educational and training requirements; licenses and certifications specifically required; offered wage or salary; and any other material and credible evidence relevant to a determination of whether the new position is in the same or similar occupational classification. It is a good idea to consult with an experienced immigration attorney on job porting issues.