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Immigration Issues/EB 3 to EB2 and job description

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Question
QUESTION: Dear Attorney Arora,
I am an Indian citizen and I am in the US on a H1B visa. I have an approved LC and I-140 under EB3 as a 'Staff Accountant'. My company is thinking of promoting me to a 'Supervisor Accountant' The Company's educational job requirements for Supervisor Accountant position, meet the EB2 category requirements.
1. Would it be an issue if the basic job description for the Supervisor Accountant is similar to the Staff Accountant job description? The Supervisor Accountant would basically be doing the same job as the Staff Accountant. The only difference would be in the work experience. The supervisor position needs 5 years of experience, but the staff accountant would need only 2 years experience.
2. Assuming that my I-140 gets approved under the EB2 category what would happen to it, if the priority date suddenly becomes current and I have not yet been promoted to the Supervisor Accountant position?
Thank you in advance for your valued opinion

ANSWER: Hi,

Your employer should file another PERM (also known as Labor Certification, or LC) plus subsequent I-140 in the EB2 category for the new supervisory position if it intends to employ you at a supervisory level when you receive your GC.

The priority date of the earlier I-140 will be ported to the new I-140. It is OK if you are not currently in the supervisory position if the priority date becomes current, as long as the company plans to promote you to the supervisory position when you receive your GC.


---------- FOLLOW-UP ----------

QUESTION: Thank you very much for your valued opinion. Would appreciate your advice on the following:

1.Would my Company need to file an amended H1 petition if the educational requirements for the Staff Accountant is Bachelors+2 years related work experience and the educational requirements for the Supervisor Accountant position is Bachelors+7 years related experience or alternate education is Masters + 2 years related experience. The rest of the job description of the Staff Accountant is the same as Supervisor Accountant. Would my Company need to file an amended H1 petition in such a scenario?

3. If the supervisor Accountant position, requires candidates to have a professional license such as a CPA license, Would such a requirement of having a CPA license be considered as an Educational requirement? Is a professional license considered as an education?

Answer
It could be considered a material change in job duties or responsibilities, and the conservative course of action would recommend the filing of an amended H1B petition with the USCIS. However, this is very case specific and should be discussed with your employer, as only the employer can file an amended H1B petition.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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