AOS and job change

[sapiens]

I have three questions, for which I would appreciate answers from all gurus:

1. What happens when a person in AOS quits his/her job and moves to a job with a DIFFERENT occupational classification, i.e., cannot invoke AC21 therefore does H1 transfer? Should that person then withdraw his/her I485? If so, how does one do that? If one does withdraw, would that person be eligible to reapply later with a new labor certification and I-140 based on the new job?

2. How does one define same or similar occupational classification for invoking AC21? Would it be sufficient if SOC code matches or should the duties and responsibilities be identical? Example: Suppose that one is working in a software firm doing VB or C# coding for a banking applications job that requires an M.S. in Computer Science. Say the SOC code for the job is tied to fresh M.S. in Comp. Sc. Now suppose, the person wants to switch to an entirely different industry, lets say a chip manufacturer, and job involves designing new hardware/software/firmware. And even for this job, the job requirement is fresh M.S. in Comp. Sc. So the SOC code is the same for the job. But the job responsibilities are "different" in both cases. Is AC21 applicable? How does one judge the difference?

3. Related to Q.1, if one leaves a current job for another with a different job description, and hence cannot invoke AC21, would a person in AOS working on EAD (H1 expired) be counted towards H1 visa cap for the current fiscal year?

I think my question is very relevant for those who decide to pursue a graduate degree and quit waiting for retrogression to resolve itself, as well as for those who are contemplating a career change, not just a job change. Under normal circumstances, if such people got GC on time, they would work for the sponsored job for a 1-2 years and then move on. But if the wait is 3-4 years or may be more after filing AOS, then it would certainly help to know one's options.

thanks!

 

[ni12]

Excellent doubts

I have very similar concerns myself. I also have a question. If one's H1 has not expired and there is still say, 10 months remaining, can one use that for tranferring to a job with a completely different description say from IT professional to self employed stock market investor

ni12

 

[immiq]

Where did you learn that “if such people got GC on time, they would work for the sponsored job for a 1-2 years and then move on”?

 

[sapiens]

Where did you learn that “if such people got GC on time, they would work for the sponsored job for a 1-2 years and then move on”?

Well, I meant "could" and in many cases "would." But you are right, I have no idea what any particular person would actually do.

Overall, this is the scenario I had in mind. Think of a guy with B.S. degree. He applies for green card in a utopia where things move reasonably fast. Say he gets GC in 1 year. He works in that job for 3 more years. Somewhere along the way he decides to do an MBA and gets admitted. He woud be "moving on" from the permanent job offer for which he got GC into a new domain.

On the other hand consider the real world. Even after 5 years he would still be stuck in retrogression, who knows even if his Labor Certification would have been cleared after the 5 years. So if he got that same MBA bug at the same age/experience-level, he is essentially stuck. If he quits in the middle, the GC processing so far is useless (of course he would have a portable priority date based subject to an approved I140), if he chooses not too he is making his future prospects more bleak. Note that, had the GC process been reasonable, he would not have this dilemma, he would be a free-agent making career choices that he thinks are good for him. Additionally, in the utopian case, he essentially would have worked in the permanent job for which he was sponsored. Not so in the latter, even though he spends the same amount of time doing the same work as in the permanent job.

 

[sapiens]

I have very similar concerns myself. I also have a question. If one's H1 has not expired and there is still say, 10 months remaining, can one use that for tranferring to a job with a completely different description say from IT professional to self employed stock market investor

ni12

I don't think you can be self-employed on an H1. But if you have an employer who wants a smart H1B who sponsors you for that job for the remaining duration of the time, and you are qualified, then I don't see why not. Of course, the INS/CIS might have questions based on the 10-month period being too short.

I am not a lawyer and all that.

 

[GreenCardVirus]

I have three questions, for which I would appreciate answers from all gurus:

1. What happens when a person in AOS quits his/her job and moves to a job with a DIFFERENT occupational classification, i.e., cannot invoke AC21 therefore does H1 transfer? Should that person then withdraw his/her I485? If so, how does one do that? If one does withdraw, would that person be eligible to reapply later with a new labor certification and I-140 based on the new job?

AC21 memos explicitly state that the "Job Duties" must be same. If one is eligible for some other classification/job duties, then it has to start with a fresh labor certification.

2. How does one define same or similar occupational classification for invoking AC21? Would it be sufficient if SOC code matches or should the duties and responsibilities be identical? Example: Suppose that one is working in a software firm doing VB or C# coding for a banking applications job that requires an M.S. in Computer Science. Say the SOC code for the job is tied to fresh M.S. in Comp. Sc. Now suppose, the person wants to switch to an entirely different industry, lets say a chip manufacturer, and job involves designing new hardware/software/firmware. And even for this job, the job requirement is fresh M.S. in Comp. Sc. So the SOC code is the same for the job. But the job responsibilities are "different" in both cases. Is AC21 applicable? How does one judge the difference?

Again AC21 Cronin Memos state that Job Duties must be same or similar. When duties are similar, the classification should automatically be similar. Only a computer programmer, computer operator or software engineer could be programming in VB, certainly not an Accountant.

Eligibility and job duties are different. To be able to use AC21, the New Job duties must be same or similar and also the eligibility requirements must be same. If both Programmer and Chip Designer need MS Computers, then you cannot use AC21 to switch from one duty to another duty that is not similar.

3. Related to Q.1, if one leaves a current job for another with a different job description, and hence cannot invoke AC21, would a person in AOS working on EAD (H1 expired) be counted towards H1 visa cap for the current fiscal year?

You question is bit vague. If you are not on H1 and you re-apply labor/140 with new job duties, then you cannot apply for 485. You must be on H1 to be eligible to file 485. If you are not on H1, you can go for consular processing.

If you want to get back on H1 after getting new LC/140, you will be able to do so without being counted towards H1 cap. Recent memos have been very favourable on this.

I think my question is very relevant for those who decide to pursue a graduate degree and quit waiting for retrogression to resolve itself, as well as for those who are contemplating a career change, not just a job change. Under normal circumstances, if such people got GC on time, they would work for the sponsored job for a 1-2 years and then move on. But if the wait is 3-4 years or may be more after filing AOS, then it would certainly help to know one's options.
thanks!

Fully understand your dilema. I am one of those who hate software programming, but am stuck doing it because of GC issues.

 

[GreenCardVirus]

I have very similar concerns myself. I also have a question. If one's H1 has not expired and there is still say, 10 months remaining, can one use that for tranferring to a job with a completely different description say from IT professional to self employed stock market investor
ni12

As long as your are eligible in terms of qualification and experience, you can change job classification on H1.

By the way, there is nothing called self employed H1.

 

[sapiens]

AC21 memos explicitly state that the "Job Duties" must be same. If one is eligible for some other classification/job duties, then it has to start with a fresh labor certification.

----------Then does one "withdraw" the pending AOS? How does one do it? Will such withdrawal have an impact of future applications for AOS?

Again AC21 Cronin Memos state that Job Duties must be same or similar. When duties are similar, the classification should automatically be similar. Only a computer programmer, computer operator or software engineer could be programming in VB, certainly not an Accountant.

Eligibility and job duties are different. To be able to use AC21, the New Job duties must be same or similar and also the eligibility requirements must be same. If both Programmer and Chip Designer need MS Computers, then you cannot use AC21 to switch from one duty to another duty that is not similar.



You question is bit vague. If you are not on H1 and you re-apply labor/140 with new job duties, then you cannot apply for 485. You must be on H1 to be eligible to file 485. If you are not on H1, you can go for consular processing.

---This is what I meant. Suppose you have been working for employer A on H1, and then employer A sponsors you for green card. LC, I140 are approved, and you also file AOS, and receive EAD. Somewhere along the line 3 years of H1B are over, and you decide let me continue on this EAD, because anyway I am working for A and am going to get GC "soon." Now suddenly you get bored with current job, and want to join new company B, but job duties are not same. So you need to apply for H1. Will this new H1 be counted towards the cap for current fiscal year? or will it not be because your original H1-B already got counted once.

If you want to get back on H1 after getting new LC/140, you will be able to do so without being counted towards H1 cap. Recent memos have been very favourable on this.



Fully understand your dilema. I am one of those who hate software programming, but am stuck doing it because of GC issues.

thanks for your responses

 

[sapiens]

----------Then does one "withdraw" the pending AOS? How does one do it? Will such withdrawal have an impact of future applications for AOS?

....

thanks for your responses

Could anyone please answer this question: Should one "withdraw" a pending AOS if one decides to join a new job where job description and duties may not be the same? How does one do it? Will such withdrawal have an impact of future applications for AOS?


thanks.