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IMMIGRATION MAY 24, 2024 | The Indian Eye 48
Saving The Labor Certification
For The Backlogged
Beneficiary Even After The Job
Has Changed
BY CYRUS D. MEHTA AND of the I-140 petition, which position, but there has been practice titled “Job Chang- ilar SOC code could be one
may have been many years some progression in the job es after the PERM Is Ap- way to establish that the po-
KAITLYN BOX*
ago. When the essence of the duties over time. Even if the proved: Legal and Ethical sition offered in the I-140 pe-
job remains the same, but the salary has increased or the Considerations for Experi- tition remains valid despite a
n “What if the Job Has role may have evolved over job title has been updated, enced Practitioners Practice promotion or progression in
Changed Since the La-
Ibor Certification Was time or require the use of up- these changes may not be Advisory” by Loan Huynh, the duties.
dated technologies, the blog material so long as the core
The USCIS Policy Man-
Cyrus Mehta and Christine
Approved Many Years Ago” suggested that one may argu- duties of the position remain Traversi. When a noncitizen ual also provides guidance
we discussed strategies for ably still rely on the original very similar. employee’s job has changed on job changes in the “suc-
noncitizen workers who are labor certification and I-140. This is unfortunately a or he has been promoted, cessor in interest” context.
eligible to file an I-485 adjust- At the adjustment of status common issue with Indian USCIS provides the follow- When a company is sold,
ment of status application, stage, it can be explained that born beneficiaries of ap- ing guidance for purposes merged, or undergoes sim-
but find that their job has the new position is similar to proved I-140 petitions in of job portability under INA ilar changes, “the new or
changed since the approval
the one described in the I-140 the backlogged employment 204(j) when an I-485 appli- reorganized company may
second (EB-2) and third cation has been filed and demonstrate to USCIS that
(EB-3) preferences. been pending for 180 days: it can be considered a suc-
They have not yet been “If you change jobs or cessor in interest (successor)
able to file I-485 ad- receive a promotion, USCIS of the original company to
justment of status ap- will determine whether you assume the predecessor’s
plications and are thus remain eligible for a Green prior immigrant benefits re-
unable to exercise job Card on a case-by-case basis quests.” The Policy Manual
portability. The labor and based upon the totality states:
certification may have of the circumstances. You “The job offered in the
been filed over 10 years must establish by a prepon- successor-in-interest petition
ago for a job that has derance of the evidence that by the successor must remain
progressed as a result of the relevant positions are in unchanged with respect to
changes in technologies similar occupational classifi- the rate of pay, metropolitan
with the advent of cloud cations. statistical area, job descrip-
computing and machine For example, if you tion, and job requirements
learning. While filing a move into a more senior specified on the permanent
new labor certification but related position which is labor certification. USCIS
followed by the filing of non-managerial, USCIS will denies successor-in-interest
a new I-140, and captur- use the criteria explained claims where the position
ing the old priority date, above to determine whether with the successor is changed
is the safest way to pro- you are primarily responsi- such that the rate of pay, job
ceed, there is no guar- ble for managing the same description, or requirements
m of antee that a new labor or similar functions of your specified on the permanent
CYRUS D. MEHTA & PARTNERS PLLC certification may be ap- original job or the work of labor certification no longer
proved or could even be persons whose jobs are in the relate to the labor market
filed if the company has same or similar occupational test.
had layoffs in the same classification(s) as your orig- In other words, officers
or related occupation in inal position.” should deny any successor
the past six months. Although this guidance claim where the changes to
USCIS has provid- is not clearly applicable the rate of pay, job descrip-
ed little guidance on outside the I-485 portabil- tion, or job requirements, as
job changes after I-140 ity context, it suggests that stated on permanent labor
approval, but we refer demonstrating that a job re- certification, if made at the
2 6th Floor
you to a 2023 AILA mains in the same or a sim- time that the permanent la-
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