Q&A’s published on the World Journal Weekly on September 24, 2023: 1. I-140 has just been approved and I want to change jobs… 2. Apply for EB-1A on your own, not necessary need an employment letter

1. I-140 has just been approved and I want to change jobs…

A reader asks: 
At present, my H-1B’s three years are almost used up and I am about to renew it. For the sake of legal status, I have been working in a small company with low wages. I consulted about job-hopping before, but they all suggested that I should try to change jobs after my I-140 was approved. At present, my I-140 has just been approved less than 180 days. I plan to start looking for a job now. My questions are:

1. At present, the processing time for PERM is getting longer and longer.  If I switch to a new company, how long will it take to re-apply for PERM+I-140?
2. Are there any differences in the relevant policies for green cards of construction companies?
3. I requested to put the phrase of applying green card on day 1 in my contract, therefore, I believe only small companies would hire me, correct?  At present, I am struggling whether to ask my family for money for another four years or take the risk of possible problems/risks to do I-140 again? I am already exhausted from getting this I-140 approved.

Arthur Lee Esq. answers:

  1. Firstly, you should make sure not to leave your current position until your I-140 has been approved for more than 180 days if fearful that your employer will seek to revoke it. If you are from a country such as China or India which is backlogged on the visa bulletin, then a withdrawal of an approved I-140 petition by your current employer may still help you in giving you an earlier priority date (i.e. when your PERM was filed or your I-140 was filed if there was no PERM labor certification). If your I-140 is revoked due to fraud or willful misrepresentation, revocation of labor certification, or invalidation of labor certification, then you do not retain an old priority date. Again, this only truly helps you if you were born in a country with significant backlog, which I would assume that you are since you have not applied for a green card yet. A timely revocation within 180 days by an employer would disadvantage you when you need to be on H-1B status for over the 6 year maximin time limit.
    In the case that you found a new job, you would need to redo the labor certification process—meaning filing a prevailing wage determination, testing the labor market, and filing ETA 9089, then filing another I-140. The good news is you would likely be eligible to keep your old priority date. However, this process would likely take another 2 years to get another approved form I-140 (with I-140 premium processing) with your new position. Then, you may file an I-485 application once your retained priority date becomes current. Typically, an adjudication on an employment based I-485 will take approximately 1 year. 
    I note that the labor certification steps may be skipped if you have an approved I-140 (or pending I-140 that is ultimately approved in the EB-1, 2, or 3 categories), and you have a properly filed I-485 application pending with USCIS for 180+ days. In that case, you may “port” your I-140 petition to a job in the same or similar job classification. But in your case, porting is not available as you have not filed an I-485 yet.
  2. In USCIS’ eyes, there are not. Your job position would need to make sense in terms of the company’s needs, the company would need to show the ability to pay you the stated fulltime salary as promised in the labor certification application, and you would need to be a full-time salaried W-2 employee upon receiving the green card.
    However, due to the nature of many construction jobs, there are some things that you and your potential employer need to look out for. Some jobs require licensure by the state and local government. For instance, if you are working as an engineer (mechanical, civil, etc.), you may need an engineering license unless you plan to work under the supervision of a licensed engineer; architects, electricians, and general contracted construction workers generally need licenses too in many jurisdictions. Therefore your employer must review the relevant licensure requirements in your jurisdiction to ensure that you are qualified for your proffered green card position. Also, PERM recruitment for construction-related positions may involve notifying a labor union that a company is recruiting a foreign worker in a position. As such, the company and employee should determine whether a labor union covers the green card position and must post a notice of intent to employ a foreign worker with that union. Also, a construction-related position may require the foreign worker to travel to construction sites. In such a case, a notice of filing should be posted at the sites where the employee will perform work as well as internally using all in-house media according to normal internal procedures. Should travel be anticipated for areas outside the metropolitan statistical area of the primary worksite, additional recruitment may be required.
  3. All companies have their own policies—some are willing to sponsor, some are not. Larger size companies may not be willing to include the language that you wish in their employment contracts.  However, I do note that it may be more difficult for a small company to sponsor you as it would need to show financial viability to pay you a full-time DOL-approved salary upon your receipt of a green card. Also its human resources department (if it has one) may not have the knowledge or experience in immigration matters as a larger company.
2. Apply for EB-1A on your own, not necessary need an employment letter

A reader asks:

I am working in the United States, and I am looking for someone to help me apply EB-1A. The person must write an employment letter to prove my work, and I will not change the field and need to ask the company to sign. Is this necessary? Is it enough to prove my job by paystubs? Because I will not change my field, I could sign it myself correct? As I feel it has nothing to do with the company, I don’t want the company to know that I am filing the petition myself. Is this idea feasible?

Arthur Lee Esq. answers:
As a condition of eligibility for EB-1A status, you must be able to show that you will be working in the same field in the United States in which you have extraordinary ability and that you will provide benefit to the United States. The adjudicating officer will decide whether you have proven these points based upon the totality of the evidence. Since you are self-petitioning, there is no requirement for a signed letter from an employer. However, having such a letter would be good evidence to show that you will continue to work in your field of expertise and provide a benefit. If you would prefer not to get such a signed letter, you can provide other evidence showing that you will continue to be in your field of expertise after your EB-1A is approved including but not limited to: (1) a showing that you have recently been working in your field of expertise such as paystubs, current job letter, and letters from others who know your work (not necessarily from management) and can attest that you are continuing to work in your field of expertise; (2) any recent contributions you have made to your field of expertise showing a continued interest in the pursuit of the field; and/or (3) any other evidence you can think of that would show that you are committed to your field.