A final USCIS guidance memorandum on job portability for employment-based adjustment applicants broadly recognises that applicants subject to immigrant visa backlogs and lengthy adjudication periods should be able to advance in their careers or move to a new job in the same or a related field without the need for a new labour certification or Form I-140 immigrant worker petition.
The guidance sets forth a detailed analytical framework for determining whether an adjustment applicant’s new job is in the “same or a similar occupational classification” as the position for which he or she was originally sponsored in a labour certification or I-140 – a key requirement of I-140 job portability under the American Competitiveness in the 21st Century Act (AC-21). (Portability also requires the foreign national’s employment-based application to adjust status to have been on file and unadjudicated for 180 days or more.)
Under the terms of the memo, USCIS adjudicators must review the totality of circumstances when comparing the foreign national’s new and initial positions, and must make a determination based on the preponderance of the evidence. Adjudicators may consider the following factors:
- Standard Occupational Classification (SOC) codes and other DOL occupational information. Adjudicators may review the six-digit SOC codes and descriptions of the new and initial jobs. The same code or a close match in codes is favourable, though not dispositive, evidence that the jobs are in the same or a similar occupational classification. USCIS adjudicators may also refer to the Department of Labor’s Occupational Outlook Handbook, Occupational Information Network (O*NET) and Occupational Employment Statistics (OES) database in comparing the two jobs. In response to the concerns of stakeholders, the memorandum states that SOC codes are not the sole factor or a mandatory factor in the portability determination.
- Job attributes. A job change may qualify for portability if the new position has the same overarching duty as the original position, or the job duties, though differing, share essential qualities.
- Job requirements. Adjudicators must take into consideration whether the initial and new jobs involve similar education, experience, skills, training, and licenses or certifications, even if they are not in the same broad occupational classification.
- Career advancement. The guidance recognises that an adjustment applicant’s move to a lateral position, a more senior position or a managerial or supervisory role may qualify for portability. Porting to self-employment may also qualify.
- Wages. Wages can be considered in the portability determination, but differences in salary between the initial and new job do not preclude portability. When reviewing wages, adjudicators are instructed to consider whether there are pay scale differences in geographic location or industry, and whether the foreign national is moving from a for-profit position to a non-profit, public sector or academic job.
- Any other material and credible evidence relevant to the portability determination.
The guidance applies to portability determinations in adjustment applications pending or filed with USCIS on or after March 21, 2016.
What the New Guidance Means for Employers and Foreign Nationals
The new memorandum is USCIS’s most detailed discussion to date of the factors that determine whether a new position is in the same or a similar occupational classification for purposes of I-140 portability. It finalizes, without significant substantive changes, a draft guidance document that the agency released for public comment late last year.
Importantly, the memo recognises that an adjustment applicant should be able to accept promotions and new career opportunities without the need for the new employer to start the green card sponsorship process from the beginning, as long as there was a bona fide job offer when the initial I-140 petition was filed and the new and former jobs share essential qualities. But the guidance also means that job changes may be subject to greater scrutiny and more frequent USCIS requests for evidence (RFEs) than before.
The new guidance is limited to a framework for analysing an adjustment applicant’s previous and new positions. A recent proposed regulation, if finalised, could in the future introduce more formal procedures for adjustment applicants who change jobs, including a dedicated form that employers and foreign nationals would use to describe the new job and its similarity to the original I-140 position.