Effect of Promotion/Position Change on PERM, i140

USA H1B Visa
1

Hi Anil,

I am up for a position change soon at my current workplace. This is still under discussion. I have an approved I-140 for my current position. The newer position is a managerial position, whereas my current position is just a senior employee. I am quite sure this will warrant an amendment due to the job description. I have a few questions regarding this.

  1. When should the PERM/I-140 and H1B amendment be applied in this scenario? Should it be before or after the position change?
  2. Also, should the PERM and I-140 be done from scratch (i.e Recruitment steps, PWD, PERM and I-140)?
  3. In case the newer PERM and I-140 is denied for some reason, is my first I-140 still valid?
  4. How long will H1B amendments usually take for approval ( I am on a non-cap, non-profit H1B). Is Premium processing avaialble for non cap H1B amendments.

Thank you very much.
Nandhini

2

PERM & i140 for new manager position

PERM & i140 can be filed after you get H1B for your new position.

Is new PERM & i140 required

If the job position is completely different from the old position, then new PERM and i140 are required.

Usually, the new job description is written in a way by Employer that helps them avoid the completely new PERM and i140.

So, talk to your attorney to understand if that’s possible for your case.

Old i140 validity

Old i140 remains valid for the old position that it was filed for unless your employer withdraws it explicitly.

H1B amendment in premium for cap exempt Employer

You are eligible for H1B amendment premium processing at California service center if your employer is cap-exempt Employer.

3

Thank you for your detailed response Anil.
I am assuming from your answers that I cannot take up the new position without an approved H1B amendment. Is this correct?

Thank you!
Nandhini

4

Yes, H1B Amendment would certainly be required as per the details shared by you.

5

Hi Anil- Just wanted to confirm a point:

  1. If my H1B amendment is approved for the newer Managerial position, but for some reason my PERM/I 140 is denied (I see you mentioned that my I140 for older position by same employer will be valid unless withdrawn by employer), should the I-140 be reapplied for newer position? Am I still able to work based on my older I140?

Thanks
Nandhini

6

PERM and i140 are for future job position.

H1B is for current job position.
If your i140 is denied for your managerial position, you cannot use it to apply H1B extention beyond 6 year quota.

You need a valid H1B to keep working and not i140.
I140 is only used to apply H1B extention beyond the 6 year limit.

You still have to work as per H1B job profile.

7

Hi Anil,

Thanks. I am already on 7th year H1B (based on my approved I-140 -3 year H1B Extension).

If the new I140 is denied, can I use my older I140 to continue extending my H1B after the 9 year mark, for my newer position?

Thanks for your help!

8

Yes, you can use your approved i140 to keep extending your H1B past 6 years until a new one is approved.

9

Hello Anil,

Could you please give your inputs on this?.

My wife’s I140 is approved 2 years before and recently she changed her job within the same company and it lead to H1B Amendment + Extension as extension was also due at the same time. H1B and H4 EAD got approved and we are currently in the 5th year. In this case, do we have to file a new I140 with the new job title to be eligible for 6th year H1b and H4 EAD extension?. Cant we use the old I140 which is from the same company?. Please advice.

Thanks.

10

Hi Anil,

My spouse is in a somewhat similar situation. My souse’s I140 was approved 4 years back and now he is changing the company to join as a Manager in the same technology compared to the current position of Sr. Consultant at current employer. So I have the below questions:

  1. Can the priority date be retained from the current I140(EB3) to the new company at position of Manager?
  2. If yes, can the new employer upgrade it to EB2 by retaining the current priority date?
  3. After H1 transfer is complete, does the new employer need to start the GC process from scratch? or some steps can be avoided?
  4. While the I140 is pending at the new employer and if my priority date becomes current to the filling date can the new employer file 485 ?