Final guidance released on job portability during green card wait

21 Mar 16

UNITED STATES

U.S. Citizenship and Immigration Services has released a final policy memorandum that provides guidance to officers on determining what constitutes a “same or similar” occupational classification for green card applicants seeking to change jobs without jeopardizing their approved immigrant visa petitions.

Key elements of the guidance:

  • Officers may look to all relevant evidence in comparing two jobs, including Standard Occupational Classification (SOC) codes as well as the job duties, skills, experience, education, training, wages and other evidence. Applicants need only prove by a preponderance of the evidence – i.e., that it is more likely than not – that they meet the eligibility requirements for portability.
  • SOC codes are one factor, but not the only factor used by officers and is not mandatory. Jobs whose six-digit SOC codes match will generally be considered the same; jobs with distinct codes that fall under the same broad category will generally be considered similar depending on their job duties, and experience and educational requirements.
  • Officers should recognize normal career progression by considering whether the jobs are in the same or similar SOC codes and, in other cases, reviewing evidence of whether the new position involves managing workers in the same or similar job as the original position or overseeing some of the functions of the original job.
  • Even if the SOC codes are not grouped together and do not indicate normal career progression, jobs may be considered similar if theyshare essential qualities or have a marked resemblance or likeness.
  • A difference in wages does not automatically preclude a finding that the jobs are similar, but applicants should explain in detail any substantial discrepancies in wages.
  • Provided they meet all eligibility requirements, applicants may seek to “port” to self-employment.

The full policy memorandum may be viewed here on the USCIS website.

Background: A draft version of the policy memorandum was released in November and USCIS accepted comments from the public until Jan. 4. The final version becomes effective today.

The memorandum affects beneficiaries of approved immigrant visa petitions whose adjustment of status applications have been pending for 180 days or more. These applicants are eligible for “job portability,” which allows them to change jobs and preserve the original petition, provided that the new job is in the “same or similar occupational classification” as the original job.

BAL Analysis: Job portability is an important issue for employers who may wish to provide career advancement or lateral movement to foreign employees during the green card application process. The policy memorandum focuses on SOC codes, reasoning that they provide some measure of objectivity for adjudicators. However, in the final version, USCIS clarifies that SOC codes are neither the only factor nor a mandatory one in the assessment, and should not limit officers’ flexibility to consider other evidence. BAL will monitor officers’ interpretation and application of the guidance, which will determine whether it accomplishes the agency’s goal of providing greater flexibility for employers and employees.

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