My status as a U.K citizen
I-140 approved Oct 2005.
H1-B now run out as of Jan 2008.
Now on EAD card with Advanced Parole documentation I-512L.
I-485 filed in Aug 2007. Considered portable to "same or similar" company.
My problem
My current employee is shutting it's operations. I work for a Semiconductor company as a "Test Engineer" and wish to stay in State and work for a company in Renewable Energy as an "Electronics Engineer Manufacturing". If you take a look at the three different lawyer inputs I am really concerned that on the one had some think it's no problem and others think I would have no chance to switch to this new job. I would really appreciate feedback from anyone with experience in the portability of EAD's and the term "same or similar" ????
Here's the three different lawyer feedbacks ………...
Lawyer 1 Positive
As long as the title of the position contains the term "Engineer" you should be OK.
Lawyer 2 Middle of the road
It truly is difficult to say. Since we filed your adjustment of status, the EB-3 category has retrogressed, and your priority date is no longer current. This means that your adjustment of status will remain pending until your priority date becomes current again, at which time USCIS will again process your case. ( You will be entitled to employment authorization and advance parole renewals until your green card is approved.) As such, it is quite difficult to estimate when your green cards will be approved, but I would guess that it will be more than a year from now.
Regrettably, same or similar does not have any strict parameters. If your change of employment does come to the attention of USCIS, the decision whether you moved to a same or similar occupation will be somewhat subjective and left to the discretion of the officer reviewing your case.
If you were to remain in an engineering-related capacity, that would most likely be considered a similar occupation. It is mostly a subjective matter, though USCIS has traditionally been very liberal in interpreting what is same or similar. According to published USCIS guidance, you may port to self-employment, though USCIS could ask for proof of the bona fide nature of the business in such an event. You would want to have evidence that the business is legitimate such as licenses, documents from the IRS showing that the business was assigned a tax id number, financial records etc.
An EAD card does authorize employment with any employer but care must be given to ensure that your permanent residency case is portable prior to changing employment. Otherwise, while the EAD does entitle you to change jobs, you would risk the eventual denial of the underlying green card by changing employment or work locations prior to becoming portable.
In general, an employment-based immigrant visa petition is only valid so long as you remain in the same job in the same location. However, when an employment-based green card applicant progresses to the point where their I-140 is approved and the I-485 has been pending for 180 days- then the green card remains approvable even if you switch jobs or geographic locations - as long as you continue employment in a "same or similar" occupation.
Since your I-140 has been approved, you need only to wait until your I-485's have been pending for 180 days to ensure that you are portable. We filed your green card applications in mid-August, so you will become portable in mid-February. At that time, you may confidently change to a "same or similar" occupation in any geographic location.
Lawyer 3 - Not good
Based upon the description of the job that you provided - our opinion would be that this is not a "similar" position that would readily permit I-485 Portability. Your labor certification and I-140 were filed as a "Senior Test Engineer". That position (provided to USCIS) states :
"Designing test programs, analyze application fails and development of new tests to screen devices at Burn-in, develop and implement test time reduction methods, utilize SDRAM architecture and test methodologies to develop and support DRAM Burn-in test programs, create test pattern specifications to support document test programs, commissioning of component memory test equipment".
Based upon this - I think the description provided for the job you are seeking - "Electronics Engineer Manufacturing", states:
"The primary purpose of this position will be to perform engineering work related to planning, revising and optimizing methods and processes in electronic manufacturing." To us, this seems a significant departure form the above description.
I-140 approved Oct 2005.
H1-B now run out as of Jan 2008.
Now on EAD card with Advanced Parole documentation I-512L.
I-485 filed in Aug 2007. Considered portable to "same or similar" company.
My problem
My current employee is shutting it's operations. I work for a Semiconductor company as a "Test Engineer" and wish to stay in State and work for a company in Renewable Energy as an "Electronics Engineer Manufacturing". If you take a look at the three different lawyer inputs I am really concerned that on the one had some think it's no problem and others think I would have no chance to switch to this new job. I would really appreciate feedback from anyone with experience in the portability of EAD's and the term "same or similar" ????
Here's the three different lawyer feedbacks ………...
Lawyer 1 Positive
As long as the title of the position contains the term "Engineer" you should be OK.
Lawyer 2 Middle of the road
It truly is difficult to say. Since we filed your adjustment of status, the EB-3 category has retrogressed, and your priority date is no longer current. This means that your adjustment of status will remain pending until your priority date becomes current again, at which time USCIS will again process your case. ( You will be entitled to employment authorization and advance parole renewals until your green card is approved.) As such, it is quite difficult to estimate when your green cards will be approved, but I would guess that it will be more than a year from now.
Regrettably, same or similar does not have any strict parameters. If your change of employment does come to the attention of USCIS, the decision whether you moved to a same or similar occupation will be somewhat subjective and left to the discretion of the officer reviewing your case.
If you were to remain in an engineering-related capacity, that would most likely be considered a similar occupation. It is mostly a subjective matter, though USCIS has traditionally been very liberal in interpreting what is same or similar. According to published USCIS guidance, you may port to self-employment, though USCIS could ask for proof of the bona fide nature of the business in such an event. You would want to have evidence that the business is legitimate such as licenses, documents from the IRS showing that the business was assigned a tax id number, financial records etc.
An EAD card does authorize employment with any employer but care must be given to ensure that your permanent residency case is portable prior to changing employment. Otherwise, while the EAD does entitle you to change jobs, you would risk the eventual denial of the underlying green card by changing employment or work locations prior to becoming portable.
In general, an employment-based immigrant visa petition is only valid so long as you remain in the same job in the same location. However, when an employment-based green card applicant progresses to the point where their I-140 is approved and the I-485 has been pending for 180 days- then the green card remains approvable even if you switch jobs or geographic locations - as long as you continue employment in a "same or similar" occupation.
Since your I-140 has been approved, you need only to wait until your I-485's have been pending for 180 days to ensure that you are portable. We filed your green card applications in mid-August, so you will become portable in mid-February. At that time, you may confidently change to a "same or similar" occupation in any geographic location.
Lawyer 3 - Not good
Based upon the description of the job that you provided - our opinion would be that this is not a "similar" position that would readily permit I-485 Portability. Your labor certification and I-140 were filed as a "Senior Test Engineer". That position (provided to USCIS) states :
"Designing test programs, analyze application fails and development of new tests to screen devices at Burn-in, develop and implement test time reduction methods, utilize SDRAM architecture and test methodologies to develop and support DRAM Burn-in test programs, create test pattern specifications to support document test programs, commissioning of component memory test equipment".
Based upon this - I think the description provided for the job you are seeking - "Electronics Engineer Manufacturing", states:
"The primary purpose of this position will be to perform engineering work related to planning, revising and optimizing methods and processes in electronic manufacturing." To us, this seems a significant departure form the above description.
