USCIS releases memorandum on determining whether a new job is in the same or similar occupational classification for the purposes of Section 204(j) job portability.

By Noelle McLaughlin

For background on Permanent Portability Under the American Competitiveness in the Twenty First Century Act, or AC21, see our prior article.

Though enacted in 2000, there are no regulations in place to interpret AC21. There have been non-binding agency memos stating USCIS position to provide guidance, but past memos have been very open in regards to job portability. This new memo released on November 20, 2015 is much more restrictive.

The full memorandum can be accessed on USCIS's website: Draft PM-602-0122.

If an Alien Worker with an approved I-140 has filed an I-1485 which has been pending more than 180 days, and they switch jobs before the I-485 has been adjudicated, they are eligible to “port” to a new employer if the job is the same or similar to the original job offer. “Porting” in this context means that the worker's I-485 remains valid with respect to the new job so long as the aforementioned conditions are met. In other words, the new employer does not need to sponsor the worker for permanent residency; his application for permanent residency may continue and be approved. Typically, workers who use permanent portability use their Employment Authorization Document (“EAD”) issued in connection with the pending I-485 as the basis for their work authorization with the new employer though, if possible, it is better to maintain H-1B status.

The job portability provisions, also contained in INA §204(j), as amended by AC21, state that the new job must be in “the same of similar occupational classification” as the job on which the pending permanent residency application is based. The new memo released on November 20, 2015 clarifies the process USCIS will use to determine if the new job is the same or similar as the occupational classification in the original job offered for an Immigrant Petition for Alien Worker (I-140), as follows:

Same. USCIS looks to whether the jobs are “identical,” “resembling in every relevant respect,” or “the same kind of category or thing.”
Similar. USCIS looks to whether the jobs share essential qualities or have a “marked resemblance or likeness.”

The primary method for making this determination will be an assessment of the job duties, skills, experience, education, training, licenses or certified required for the respective job, wages offered for the job, and other credible evidence submitted by the application. The SOC codes used by the Department of Labor (DOL) will be heavily relied upon for making this determination.

It is the Department of Labor who determines the SOC code on the Labor Certification. Because porting does not require a new Labor Certification to be filed with the DOL, it will be up to the applicant to determine what SOC code should be used for the new job. USCIS may disagree with the selection.

USCIS will also take career progression, promotions, transfers, differences in wages, and other variations into consideration relying on the preponderance of the evidence to show how the job is same or similar.

The new policy is being published in an effort to provide clarity and stability to foreign workers who are changing employers, seeking new opportunities, or accepting promotions and wondering how this will effect their lawful permanent residence application.

Please note that this is not yet official USCIS policy. It will become effective upon implementation. The memo indicates that this policy will be effective as of March 21, 2016.

After implementation, USCIS will use this policy when adjudicating I-485 applications. Anyone who has ported and has an I-485 application pending will be subject to these changes. This includes 2007 cases with pending I-485 applications.

The policy is open for public comment until January 4, 2016.

For additional information about this policy and how it may affect your case, please contact our office.