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Change in Employment

Change in Employment

Because most work related visas are geographically and position specific, a change in the location or nature of an employment opportunity for a foreign national may impact both the temporary work visa status and the processing of permanent residency status.

The responses below are intended to provide a general overview of the government’s requirements when the location or nature of a position changes

These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.


Part 1: Changes in Location

Questions Regarding H-1B Visa Status

I have been asked to move to a different office of the company.  What happens to my H-1B immigration status?

Because H-1B status is geographically specific, the company will need to file amended H petition for any foreign national employee who relocates to a new office. In the best-case scenario, the amended H-1B petition will be filed prior to any physical relocation of the employee.  However, in the past, the government has been fairly understanding of corporate changes, reorganizations, and transfers, and has applied a “reasonable period of time” rule which allows companies to file amended H petitions as soon as practicable.     


Can I travel internationally while the H Amendment is pending?

We do not recommend international travel while the H petition amendment is pending because it can be confusing to the immigration authorities upon re-entry to the United States. That said, if you possess an unexpired H visa in your passport and will be returning to the United States prior to the expiration of your current I-797 approval, it may be possible for you to travel internationally while your H-1B petition amendment is pending. Particularly during any time of transition, you will want to communicate any particular international travel need to your company. It’s a good idea for someone in the circumstances to provide an explanatory letter to present to the Immigration Inspector upon one’s return.


What if I chose not to accept relocation?  What happens to my H-1B immigration status?

The USCIS believes that when your employment with your present employer ends, your H-1B status also ends, unless you have a new H employer sponsor to employ you and that sponsor has filed the necessary H transfer documents in a timely manner.


I heard that an H-1B worker has 10 days to leave the United States or file a new application with the USCIS after terminating employment with an existing employer.  Is this true?

The “10-day” rule is a regulation that specifically applies to the end of the six-year maximum stay for H-1B status. It does not apply to a termination of employment situation. There is no regulation that states how long an H-1B worker may remain in the United States after the employment relationship has ended.            


Questions Regarding the Permanent Residency Process

The company has started the permanent residence (“greencard”) process for me.  Do I have to start the process all over again if I relocate?

While the labor certification process is position and geographically specific, it is also prospective in nature. In other words, the position to be offered is a permanent (at-will) position in a particular location that may be offered some time in the future, when the government approves the certification and permits the employer to do so. Because of this prospective nature, it will depend on what year the employer anticipates will be the location of your “permanent” position in the future. If it is most likely that your position will end up being in the location of your transfer, your employer will need to retest the job market in that location and file a new PERM.


Is there anything else I should do regarding my immigration status in this situation?

Whenever a foreign national moves he or she must notify the immigration authorities by filing an AR-11 within 10 days.  Please keep in mind that, if you relocate, you will need to advise the immigration authorities of any such change in address.  The AR-11 Form may be located on the United States Citizenship and Immigration Services’ (USCIS) website at www.uscis.gov.


Is there anything else I should know?

You will most likely have many unanswered questions that relate to your particular circumstances.  To obtain answers to your particular questions, you may wish to seek the counsel of a lawyer who specializes in immigration law.


Part 2: Impact of Changes to the Position

A foreign national who 1) holds nonimmigrant visa employment status, 2) has an approved PERM labor certification, 3) has an approved I-140 immigrant visa petition, and 4) is subject to visa backlogs frequently must wait several years or more to file the final application for permanent residence. Only once a visa number becomes available is such a foreign national eligible to file the third and final application in the permanent residence process — the adjustment of status (AOS) application. During this waiting period, it is not uncommon for the employer and/or employee to seek for the employee to change positions, pursue promotions, or change job locations within a company having multiple offices. These FAQs address this scenario.


If I have an approved PERM and an approved I-140 and my employer wants to promote me, how will the promotion impact my approved PERM and I-140? 

The starting point is to review the proposed new position description and compare it with the PERM position description to determine how different it is from the position for which the PERM and I-140 were approved. The factors that will be evaluated are:

  • Title
  • Salary
  • Duties, including managerial duties that are more than minimal
  • Education, experience and special skills required
  • Department within the company
  • Manager
  • How the PERM position was classified by the Department of Labor, and how the DOL likely would classify the new position

I have heard that as long as there is at least a 50 percent overlap of the job duties, my PERM should not be affected. Is this true?

This is not correct. The 50 percent overlap analysis and standard apply in a different context — in determining whether an employee is allowed to use experience gained with the employer as required experience for a PERM application. 

The standard for determining whether a PERM remains valid is whether the test of the U.S. labor market that was conducted for that specific PERM position remains valid — is the position similar enough that a U.S. worker seeing the job posting for the new position would consider it the same job as for the PERM posting, and not a job that is more attractive than the one that was posted for the PERM?


Is there some percentage-based standard or specific legal standard other than this to determine whether a new PERM will be required?

Unfortunately, no, there is no specific statutory or regulatory guidance on what the legal standard is on when a new PERM is required for a position that is “different.”


What are some examples of two positions that are different but not so different that a new PERM must be filed?

A Software Engineer and a Lead Engineer may not be so different that a new PERM is required, provided that the Software Engineer position had some description of possible management in the job duties, and the Lead Engineer managerial duties are minimal so that the Lead remains an individual contributor.  


What is an example of a position that is different enough to require a new PERM?

A PERM position for Software QA Engineer and a new position for Technical Marketing Lead might require a new PERM if the marketing and outward-facing duties of the Technical Marketing Lead position are more than minimal, and the hands-on QA testing duties do not comprise nearly all of the duties for the new role.


If a new PERM must be filed, do I have to start the PERM and permanent residence process all over again?

Although the company would have to start from the beginning with the process of testing the labor market and filing the new PERM, you should be able to use the old priority date from the first PERM and I-140 approval, assuming that the second PERM and I-140 are also approved.


Will I be able to continue to extend my H status based on the first approved I-140 until I can get the new PERM and I-140 in place?

Yes, the first approved I-140 can be used for H extensions while you remain in the permanent residence process.


What happens if my priority date becomes current (i.e. a visa number becomes available) before the second PERM and I-140 are in place?

Unless you and the company intend for you to fill the position contained in the first PERM at the end of the process, you may not proceed with an adjustment of status (AOS) application based on the first PERM.  As part of the AOS application, the employer must provide a letter confirming that the job opportunity for the PERM is still open and that the employer is still committed to paying the prevailing wage for that position.  If this cannot be provided in good faith, the adjustment should not be filed until the second PERM and I-140 have been approved. 


Will my first PERM be in jeopardy and/or be revoked if the second PERM is filed?

If the second PERM is for a different position, the company should not be forced to withdraw the first PERM.  It should remain valid and could be used if you and the company intend to fill the PERM position at the end of the permanent residence process.  It is possible to have two approved PERMs for two different positions and two I-140s for employment with the same company.


What impact would the position change have on my H-1B status?

If the change is material, then a new LCA and an amended H petition should be filed to reflect the new position. If the change is minor and not material, such as a title change and slight salary increase but no material change to the job duties, then these details about the position could simply be updated in the next H extension petition.  


If I am promoted to a manager role, will I become eligible for an EB-1 multinational manager I-140 immigrant visa petition to be filed on my behalf?

 

Most likely, no. The EB-1 multinational manager classification is for those who have worked for a company related to the petitioning company (such as a subsidiary) outside the United States for at least one year out of the past three in a manager role — generally managing professional employees — and who is then transferred to the United States to serve in a manager role.  If you have not worked outside the U.S. for a related company for one year or more as a manager, you will not be eligible for this classification.


If comprehensive immigration reform is enacted into law or President Obama's proposals are implemented, how will this affect whether and when I accept a change in position with my employer?

Until any new law or proposals are implemented, it is very difficult to predict.  However, if it appears likely that significantly more employment-based visa numbers will become available, which should translate into decreased waiting periods for securing a visa number and then filing the adjustment of status application, it may be more prudent to wait to accept a different position. If the AOS application has been filed and pending for 180 days, then there is more flexibility permitted in changing positions, provided that the new position is in the same or a similar occupation.  Or, if the permanent residence process could be completed before the promotion/significant change in job duties becomes effective, then no new PERM and I-140 would need to be filed. 

 

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