Filing under EB2 for a new role within existing department

[bafflingrain]

Hi Experts,

 

I work for a fortune 100 company and recently I have taken up a new role as manager within my existing organization, in a new department where Master's Degree is required (a must). Previously, I had my I-140 filed under a different role (consultant) under EB3 Category in the same organization. Hence I was able to get H1B extended for 3 years at a time.

 

This new position is more than 51% different from the previous role. Now I have 4 questions.

 

1) I read somewhere that my current H1B should be amended with the new title. Can that be done anytime before my current H1 expires?

2) When the company files for H1B extension close to the date of expiration of current H1B validity, can the company use the existing approved I-140 (consultant) as a basis to get H1B extended under new role?

3) When the priority date arrives ( whenever!) can I use the existing I-140 approval or have to move back to the previous role for few months in order to file I-485.

4) Assuming, the company agrees to file under EB2, would I be able to port my priority date ? ( This is the best case scenario, but there are no guarantees that the company will file a new labor and I-140 under EB2 category)

 

I have 10 years of experience while on H1B alone.

 

Can someone please lend your thoughts and suggestions and clarify most, if not some of the questions?

 

Thanks !!!

 

 

[bafflingrain]

Any suggestions/expert opinions here?

[xfitter]

Hi Experts,

 

I work for a fortune 100 company and recently I have taken up a new role as manager within my existing organization, in a new department where Master's Degree is required (a must). Previously, I had my I-140 filed under a different role (consultant) under EB3 Category in the same organization. Hence I was able to get H1B extended for 3 years at a time.

 

This new position is more than 51% different from the previous role. Now I have 4 questions.

 

1) I read somewhere that my current H1B should be amended with the new title. Can that be done anytime before my current H1 expires?

2) When the company files for H1B extension close to the date of expiration of current H1B validity, can the company use the existing approved I-140 (consultant) as a basis to get H1B extended under new role?

3) When the priority date arrives ( whenever!) can I use the existing I-140 approval or have to move back to the previous role for few months in order to file I-485.

4) Assuming, the company agrees to file under EB2, would I be able to port my priority date ? ( This is the best case scenario, but there are no guarantees that the company will file a new labor and I-140 under EB2 category)

 

I have 10 years of experience while on H1B alone.

 

Can someone please lend your thoughts and suggestions and clarify most, if not some of the questions?

 

Thanks !!!

1. Yes (I just did this recently). 

2. Yes (I just did this recently). What is the significance of '(consultant)' in your statement? Not sure if that situation voids my answer. My case - I'm directly employed.

3. I don't think you need to move back just for filing I-485. You would need to move to the position your GC was filed for after you receive GC - this is my understanding - need not be correct - always better to consult an immigration attorney.

4. Yes (did that few months ago).

 

Hope this helps.

[bafflingrain]

Thank you xfitter! Your answers did help.

I am also directly employed and was a consultant ( just a title) before. I accepted this new position as a Manager after graduating from Masters with the same company, but under a different wing.

Now, this company paid 25% of the entire fee, so wanted to be absolutely sure that I can request them to initiate my EB2 process.

[xfitter]

This is based on my reading of various posts in this forum - you should always consult an immigration attorney for accurate details:

If your new position's requirement is Masters degree, I think there is some restriction that you cannot use the Masters you obtained while being employed by the employer who is going to file your EB2, and if the employer paid for it. Do a thorough search on this forum, you will find more details; I see that you have even responded to a related thread, so you are aware. Good luck, bafflingrain!

 

While there are posts that say you cannot use experience gained with current employer to use for EB2, it's not entirely true. You can and if you are lucky, you may get through with experience gained from current employer. It all depends on your luck (whoever reviews your case) or the lack thereof. If you are unlucky, your PERM may get rejected for reasons such as the alternate experience mentioned in job ad (if you are using Masters) not being equivalent to the Masters degree requirement!

 

I declined a promotion to manager position in 2009 since I did not have Masters and I was certain my employer would not pay me the level IV wages for a manager position, if they agreed to pursue in EB2 for the manager position. But I did have 6+ years experience prior to joining my employer. 

[t75]

Having employer sponsorship for masters could be a problem.  The employer's attorney can advise of proper filing status based on the specifics of your qualifications and the job.

 

They will also advise you of the process that would have to be followed and the employer would have to agree to do what is required.

 

Remember, if you voluntarily give up your job, you may not get it back. There is no law that states they must hold it open for your return.

[bafflingrain]

Thank you guys! I'm sure that an immigration attorney should be able to suggest more options. I've consulted with attorneys from Murthy Law firm previously and they provided good suggestions. I'll consult them once more.

I do have few more doubts in this process and once it's all cleared up, I'll post the solution here.

Cheers!