US Immigration - PWD > PERM/LC > i140 > Changing Jobs - Full Process

Wednesday, March 27, 2024
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Here are all the steps for PWD > PERM/LC > i140 if you already have an H1B work visa:



A) H1B non-immigrant visa To EB2/EB3 immigrant visa Status:

  1. Formulate job requirements & duties:
    1. Initiation received and case record opened by lawyer
    2. Lawyer contacts client (employer & employee) with case instructions and request for documents
    3. Employer formulates job duties and identifies the requirements for the job that they plan to hire. 
    4. Completed questionnaire received from employer
    5. Approved PERM job duties and requirements received from employer
    6. Employee completes questionnaire for all previous experience
    7. Immigration High Touch Call - The employer & lawyer determine the appropriate preference category for the foreign national.
    8. Updated sponsorship position details requested from the employer
    9. Skills chart requested & developed based on job description.


  2. Request Prevailing Wage Determination from DOL:
    1. DOL will determine the prevailing wage for the position in the specified geographic location, based on the job duties, minimum requirements, and other details. If the wage for the position is governed by a collective bargaining agreement, documentation is submitted to DOL to show this.
    2. The prevailing wage determination sets the minimum wage that the employer must be willing to pay the employee, at the time that the employee becomes a legal permanent resident. 
    3. Currently, DOL issues a prevailing wage determination in 6-8 months (10 months for union positions).
    4. Lawyer drafts Prevailing Wage Determination/Request (PWD/PWR) & Experience verification letter (EVL).
    5. PWD is filed using Form ETA 9141.
    6. EVL format and details sent by Lawyer to employee
    7. Lawyer requests employee to get EVL approved from previous employer(s).
    8. Signed EVL(s) received. (Employee's prior employer > employee > Lawyer)
    9. All documentation required to process case received by Lawyer.
    10. Original PWD received from DOL, employer notified if new PWR is needed
    11. If new PWR is needed; same is submitted on DOL website
    12. Second PWR filed if needed. 
    13. Last Prevailing wage determination received from DOL

  3. External Recruitment Process:
    1. Once the Prevailing Wage is pending, your legal team will discuss the timing for the advertisements. Depending on factors such as prevailing wage processing times, the category and wage level we expect to receive, and your immigration status, your attorney may advise running ads before the determination is received, or waiting until we have it in hand.
    2. Ask for this step to happen in parallel when the PWD is happening.
    3. – approximately 1 month for the active advertising period, and then 
    4. Concurrent recruitment scheduled to start.
    5. Concurrent recruitment authorization requested from employer
    6. Concurrent recruitment authorization received from employer. Lawyer drafts materials for the same.
    7. The employer conducts a recruitment process for 1 month ensuring the recruitment process is fair and unbiased to test the US job market. Recruitment is done using many channels like newspaper, radio, online websites, on-campus, etc.
    8. Advertisements will be placed to test the labor market as a required part of the PERM process. This labor market test for PERM purposes must be conducted in conformity with DOL rules. 
    9. Concurrent recruitment materials sent to employer for posting,
    10. Filing window for PERM starts 2months after this and is valid for ~120days/4months.
    11. Often when assisting law firms and employers work through the State Workforce Authority (SWA) job order posting process, the State workforce agency staff will lock, freeze, or delay activation of a newly registered account. State Workforce Agency staff prefer as direct and exact a method as possible to verify the business and it’s details.
    12. State specific SWA verification code requested from employer
    13. SWA staff are generally cooperative with legitimate businesses to prevent fraud.
    14. Staff may verify business details like name, address, and ownership.
    15. Once satisfied, they enable job order posting privileges.
    16. Successfully register the firm and post a job order for 30 days, meeting PERM labor certification requirements.
    17. Lawyer accesses the employer's State-specific SWA account
    18. Obtain electronic PDF printouts with start and end dates for the job order, which are needed for the Recruitment Report (DOL ETA Form 9089) and uploading to the PLC DOL ETA website.
    19. Immigration lawyers confirm newspaper/journal ads were placed
    20. Newspaper/joural ad tearsheets received by Immigration lawyers.
    21. During this period, your immigration team will continue to work on your application, putting the materials through several rounds of review.
    22. After the recruitment is complete and the employer must demonstrate that there are no qualified/suitable US worker for the role.

    23. If an able, willing, and qualified US worker applies for the position, we will need to stop the process, wait at least 6 months, and then re-test the labor market, perhaps with modified criteria.

  4. Permanent Employment Certification Filing:
    1. The employer must obtain certification from the Department of Labor that qualified & willing U.S. workers are not available for the position offered to the foreign national beneficiary and that employing the foreign national will not adversely affect the wages of U.S. workers.  
    2. To obtain this certification, the employer submits an Application for Alien Employment Certification (also known as a “labor certification”) to DOL. The employer will file Form ETA 9089 electronically for Permanent Employment Certification (PERM). (Applications may also be submitted by mail, but these are subject to longer processing times.) 
    3. Applications are submitted electronically to a Department of Labor processing center. The priority date is the date the Labor Certification was initially filed.
    4. PERM applications are subject to audits by DOL Certifying Officers, based on specific compliance criteria or random selection.  If a case is selected for auditing, processing times are much lengthier. (upto 1.5years)
    5. A chance of the case being audited is small: nationally the audit rate is over 25%, but with a professional immigration team the rate is less than 5%.
    6. Immigration lawyers collect all the info & documents needed to file PERM.
    7. Forms/documents sent to employee for review and signature
    8. Forms/documents sent to employer for review and signature
    9. The Department of Labor (DOL) certifies the Labor Certification.


  5. i-140 Petition Filing:
    1. This step can happen in parallel when the PERM is in process with DOL. Preparation time varies depending on case complexity but typically takes a few weeks to a month.
    2. i-140 is a petition to USCIS to classify the applicant as an Immigrant Worker. 
    3. Employers must show that the company can pay the employee the offered wage, and the employee must show that they have all of the qualifications for the job.
    4. This petition must be submitted with the Certified Labor Certification (also called the 9089 or PERM form), which is only valid for 180 days.
    5. The employer prepares Form I-140, including gathering necessary documents and information.
    6. Filing the I-140: The employer submits the completed Form I-140 along with the required filing fee and supporting documents to the United States Citizenship and Immigration Services (USCIS).  i140 and i485 can be filed concurrently once your green card priority date is current (not for Indians in the US).
    7. USCIS issues a receipt notice to acknowledge the petition's submission.
    8. USCIS Processing: USCIS reviews the I-140 petition to determine eligibility and compliance.
    9. Time: USCIS processing times vary but typically range from 4 to 8 months. Premium processing (additional $2500 fee) reduces the processing time to 15 calendar days.
    10. Approval or RFE Response: USCIS either approves the I-140 petition or issues an RFE. If an RFE is received, the employer must respond with requested documentation or clarification within the specified timeframe ensuring the RFE response adequately addresses USCIS concerns and provides requested evidence. The response time for an RFE is typically 87 days, but it can be shorter in some cases.

B) Extending H1B work visa beyond initial 6 years during/after i140 approval:

  1. If 365 days or more elapsed since an I-140 employment-based petition for permanent residence (PERM/LC) was filed on your behalf, your H-1B status may be extended in one-year increments until such time as your permanent residency application is approved.
  2. If you have an approved I-140 employment-based petition but your priority date is not current, i.e. immigrant visa number is not available to you (as immigrant visas for your country of birth are oversubscribed) your H-1B status may be extended in three-year increments until your permanent residency application (PERM) is approved.
  3. You can try to make the PERM applied/filing date to be 365 days before your H1B 6 year expiration by extending your 6year H1B period by the following 2 methods:
    A) Visit Canada or Mexico for a short term like 30days and use AVR to return to US before the start of the 7th year.
    B) Choose to spend more vacation or work from time outside the USA & then recapture it.


C) Changing jobs after i140 approval:

  1. Basic Flexibility:
    1. You can use the approved I-140 to maintain your priority date with the new position after promotion/transfer into same/different company by filing a new PERM and i140 through them. (new AC21 rule modification done in Jan 2017).
    2. There is no expiry date mentioned on the I-140 approval. You can use it with as many employers as you want until your date of the green card gets current.
    3. As long as you meet the eligibility requirements each time, you should be able to port your I-140 more than once. It is worth mentioning that frequent job changes may raise concerns of an adjudicator regarding the "permanency" of your job offers. Although you would have no choice when facing lay-offs or a company shut-down, you should be aware of the negative impacts of "job hopping." 
  2. International Flexibility:
    1. You can come back to the US anytime in the future by getting a H1B transfer/extension from a new employer using your already approved i140 from your older job/employer.
    2. You will still need a new i140 preapproved for the new position with the new employer to file an i485 adjustment of status before your priority date becomes current.
  3. Your new employment must be the "same or similar" occupational classification to the one described in initial Form I-140. There is no clear definition of what constitute "same or similar," but a USCIS adjudicator will consider the following factors:
    1. Job Description: your job duties of the new employment will be compared with the job descriptions contained in your I-140 or labor certification (ETA 750A or new PERM).
    2. DOT code and/or SOC code: Your DOT code or SOC code assigned to the I-140 based on your labor certification, or an appropriate code determined by the adjudicator if LC was not required, will be used to judge whether the new employment is the same or similar occupational classification.
    3. Wage information: your new salary should not be significantly different from the previous one. However, it doesn't have to be exactly the same or necessarily higher.
  4. Your new job doesn't need to fulfill any of the following conditions:
    1. same geographic location: A May, 2006, USCIS Memo from Yates specifically stated that geographic location of the new employment does not have to be the same as specified in the approved Labor Certification and initial Form I-140, as long as it is the same or similar occupational classification.
    2. pay the same or a higher salary: The Yates Memo (2005) explained that a difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial, as long as the case meets occupational classification requirement. However, a significant discrepancy in salary may be a factor in determining whether the new job is "same or similar."
    3. Proof of "ability to pay": USCIS will not request proof of "ability to pay" from your new employer. However, they may issue RFE to verify the legitimacy of your new employer, as well as your job offer. While adjusting your I-485, USCIS will also evaluate the potential of you becoming a public charge. So it is essential that your new employer has relevant materials ready, which may include the same documents required as proof of "ability to pay."
    4. new labor certification:  Your already approved LC remains valid even if you seek to adjust your status based on another employment opportunity.
    5. exactly same job title: USCIS understands that different companies may use different titles for essentially the same position and will make a determination on a case-by-case basis. However, it makes everyone's life easier if you have identical job titles.
  5. After your I-140 approval always notify USCIS that you have changed jobs:
    1. You or your attorney should send a letter to the USCIS service center explaining that you have invoked AC-21 portability (job switching) provision. Decide what supporting documents to send with the letter, such as your job offer, to demonstrate your eligibility.
    2. If an adjudicator has no knowledge of you switching jobs, and there is something wrong with your I-140 (revoked, for example), he or she is required to issue a Notice of Intent to Deny (NOID) your I-485. 
    3. There have also been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, but their cases were still denied. 
    4. Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.


D) When your H1B work visa Extension beyond the 6th year Is a Risk:
  1. Denial of the labor certification application by DOL
  2. Revoking an approved labor certification by DOL
  3. Denial of pending I-140 petition by USCIS
  4. Denial of adjustment of status by USCIS
  5. After LC approval, employers will have 180 days to submit the certification to USCIS in support of an I-140 petition. So if an approved labor certification wasn't used in an I-140 petition within 180 days, it would no longer be able to support an H1B post 6th-year extension.
  6. Employer/lawyer ignores an RFE regarding the unapproved I-140 even if your I-485 has been pending for 180 days or more.
  7. Withdrawal of pending I-140: by your older Employer while your application decision is pending.
  8. Withdrawal of approved I-140 within 180days of application decision: by your older Employer.
  9. Revoking an approved I-140 180days before/after application decision: by USCIS if they find fraud or misrepresentation by you or your lawyer &/or employer.
  10. If you fail to prove that a bona fide employment relationship existed at the time of filing. So leaving too early obviously makes it more difficult to establish your case, especially if your employer is no longer willing to cooperate.
  11. NOTE: Employers may request the i140 withdrawal even after 180 days. Do not worry if the USCIS case status shows as ‘withdrawn’ online. You can use the i140 withdrawn after 180 days to port your priority date into your new i-140 and extend H1B.
  12. If you or your lawyer doesn't file for Green card (I-485) within 1 year of your priority date becoming current; the government will perceive you have quit, and the next person in the line will get your visa.


E) Can my spouse work in the United States?
  1. H-4 spouses are not eligible for work authorization unless they have an approved Employment Authorization Document (EAD) through their H-1B spouse's approved Form I-140 immigrant worker petition (takes 2.5-4years). 
  2. You can also use an approved I-140 from an old employer to apply for H4-EAD.

NOTE: ANY TIMING PROVIDED ABOVE IS ONLY A ROUGH ESTIMATE BASED ON RECENT EXPERIENCE. FUTURE PROCESSING CAN BE SIGNIFICANTLY DIFFERENT.

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