Change of job profile and employer while waiting for priority date to be current

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frodo7

Registered Users (C)
I am currently on my second H1B visa at the same employer
with my visa expiring in Sep 2011.
I had filed my green card application in 2006 and my priority date is
Nov 2006 filed under EB2 with country of birth as India. It was filed
under the category "Member of technical staff (Software Engineer)".
Some more details on my application -

1) My I-140 has been approved
2) My I-485 has been filed and pending for over 180 days
3) I had received an EAD card as well, though my priority date under
EB2 is still not current.

So my questions - If I were to move to a Product Manager role with another employer
would my application be carried over completely? Would some or all
parts have to be reset?

Specifically will I be able to carry over my priority date even if application is considered to be non-portable by USCIS?

The new companies lawyer mentioned that if my I140 is approved and not withdrawn then my priority date is reusable even for a new PERM application.

thanks
 
Job duties matter, not job title. However, based on those job titles I would expect that the job duties will be too different for AC21.

And if you don't satisfy AC21, you would have to file a new labor certification and I-140 for the new position. Then you can port the old priority date to the new I-140, but the original employer could thwart that by revoking your I-140.
 
Thanks for the quick note! I read on this forum at forums.immigration.com/showthread.php?15377-Changing-employer-can-the-employer-withdraw-I140 that if it is more than 180 days after I485 applied that employer cannot withdraw the I140. Is that true?
 
The employer can ask USCIS to withdraw the I-140. What happens next depends on whether you found an AC21-compliant job.

If you found such a job, USCIS will keep the I-140 alive. But if you didn't find another job or the job doesn't satisfy the AC21 "same or similar" criteria, USCIS will follow the employer's request and revoke the I-140 and deny your I-485.
 
Thanks for the replies! So now assuming that the job duties are considered not similar enough, the hard part is figuring out whether my current employer has a policy of withdrawing I140's or not. Is this the norm? I do not want to risk causing it to happen, if they do not already do it by alerting them of this possibility :)
 
Most employers will just forget about you after you leave, and they don't bother to withdraw the I-140.

But you have other problems to worry about. At any time, USCIS can send an RFE about your current job situation. They do this randomly for people whose I-485 has been pending for years, just to check if you're still with the same employer. Or they do it in response to long distance address changes; if you move 500 miles away, they wonder if it's for a new job. Then you have to provide a job letter to show that you're still in the same job, or that you've found another job that satisfies the "same or similar" criteria. If you don't provide that evidence, USCIS will revoke your I-140.

Then if you manage to last until green card approval in that non-similar job without your I-140 being disturbed, USCIS may revoke your GC if they later discover that you didn't have a "same or similar" job or job offer at the time of GC approval.
 
frodo7 said:
Thanks for the replies! So now assuming that the job duties are considered not similar enough, the hard part is figuring out whether my current employer has a policy of withdrawing I140's or not. Is this the norm? I do not want to risk causing it to happen, if they do not already do it by alerting them of this possibility :)
Click to expand...

the job duties have to qualify as similar to GC job if you move to another employer, irrespective of the old employer withdraws the 140 or not.
 
That makes sense. Does the same apply in case of moving to a different job profile (such that it may not be considered similar for AC21) with the same employer that filed the application?
 
frodo7 said:
That makes sense. Does the same apply in case of moving to a different job profile (such that it may not be considered similar for AC21) with the same employer that filed the application?
Click to expand...

If you stay with the current employer and move to a different job profile, then the employer has to file a brand new GC case for you for the new position.
 
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