My job title was “Senior Application Developer” when my EB2 I-140 was approved EB2 in 2012 (SOC 15-1132). My current job title changed to “Manager IT Applications “ in Jan 2018 with salary increase (SOC 11-3021). Both job descriptions are very similar except now I perform the tasks I performed as Sr. Application Developer and also manage other developers.
Job employer/roles/team is exactly same since I-140 approval.
My employer’s attorney says “filing an I-140 petition to downgrade from the EB-2 to the EB-3 classification carries some risk, given the change in title and salary”
What level of risk may be involved?
Does the above change in job title fall under Same or similar category?
The answer to the first question is yes. They filed an amendment.
I am not really sure about the second question. Do I really have a choice of filing the downgrade for the new position and be able to use my original perm? I thought they will have to downgrade under the original position.
The lawyers point was that current h1b has no connection to the gc application so I can continue with my current position while gc is downgraded under original position?
Hence my doubt about same or similar does the position have to be proven same or similar at time of downgrade or when 485j is filed?
Will the above two position be treated as natural progession?
Sorry if I sound a bit confused as I am a bit confused about the process for downgrade and change of position.
So @anil_am22 do you mean my current position of manager on my h1b can continue untill its time for 485j? Will the two soc above be considered natural progression and be treated same or similar for 485?
Lastly, in my case does it even make sense to downgrade with my eb2 date being first half of 2012.
Thanks for your response
This means your employer and immigration lawyer thinks there is a material change in the job that required amendment, which is contrary to what you said about duties being almost same.
Sure, both jobs can be different but when your employer is same for H1B and GC, GC job is supposed to be the one you are doing on H1B, right? Unless you are planning to go back to your old position (demotion) once your GC is approved, you may not be able to use your EB2 PERM to downgrade to EB3 with new position you are currently in.
Yes, it has to match what you had in the EB2 PERM otherwise your I485 may see RFE.
This will be an obligation on your employer and attorney to prove in case of an RFE.
Thanks for those detailed explainations @Kalpesh_Dalwadi as for the first point, my employer basically follows whatever the lawyer says and I remember at the time of promotion back in 2017, The lawyer had mentioned all we have to do is file an amendment to h1b. Does it mean at the time of adjucating uscis will see this amendement as a proof that this is not a same or similar job? I said my duties are same based on the description of the two jobs. The detailed letter explaining the two positions when compared side by side looks 80% same. Except for the additions I mentioned above (like manages team of developers etc.)
During my recent H1B renewal when I asked the lawyer if we should file the renewal under gc soc code (beginning of this year) so that we are ready for gc he said the new soc and position will be considered natural progession and count as same or similar position.
Do you think downgrading to eb3 will create an unnecessory situation and given that my eb2 priority date is first half of 2012 I should avoid downgrading and just wait another few months as fy22 numbers may pass my dof for eb2 itself? Or should I take a chance and downgrade to eb3 with new role or take up the previous role (on gc filing) then downgrade?
I would just follow my lawyer’s advice on the downgrade. And your PD being 1st half of 2012, i do see it in at least the DOF chart by end of this year so may be wise to wait for now.