• USCIS Proposes Guidance on Job Changes By Employment-Based Adjustment Applicants
  • December 2, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • A draft USCIS guidance memorandum on job portability for employment-based adjustment applicants broadly recognizes that these foreign nationals should be able to advance in their careers or move to new jobs in the same or a related field without the need for a new labor certification or Form I-140 immigrant petition. Although this draft reflects USCIS’s current thinking about portability, the final guidance will not be issued until after public feedback is received. Comments will be accepted by the agency through January 4, 2016.

    The draft guidance sets forth a detailed analytical framework for determining whether an adjustment applicant’s new job is in the “same or similar occupational classification” as the position for which he or she was originally sponsored in a labor certification or I-140 - a key requirement of I-140 job portability under the American Competitiveness in the 21st Century Act (AC-21).

    Adjudicators would be instructed to review the totality of circumstances when comparing the foreign national’s new and initial positions. As a first step, adjudicators would review the six-digit Standard Occupational Classification (SOC) codes of the two jobs. A close match in codes would be considered favorable, though not dispositive, evidence that the jobs are in the same or similar occupational classification.

    Adjudicators would also be directed to take into account other factors and circumstances relating to job changes, including:
    • Essential Job Duties. The draft guidance suggests that old and new jobs that share essential qualities or a similar overarching duty could qualify, even if they are with different employers or different industries.
    • Job Requirements. The draft guidance proposes that adjudicators take into consideration whether the jobs involve similar education, experience and skills to perform the duties, even if they are not in the same broad occupational classification.
    • Career Advancement. The draft guidance recognizes that an adjustment applicant’s move to a more senior position or a managerial or supervisory role may qualify for portability.
    • Wages. Differences in salary between the former and new job would not preclude portability benefits. When reviewing salary, adjudicators would be 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 to a non-profit, public sector or academic job and other factors.
    What This Means for Employers and Foreign Nationals

    The draft memo is the USCIS’s most detailed discussion to date of the factors that determine whether a new position is in the same or similar occupational classification for purposes of I-140 portability. Importantly, it recognizes that an adjustment applicant should be able to accept promotions and new career opportunities without the need to be sponsored for a new labor certification and I-140 petition, as long as the new and former jobs share essential qualities.

    But the guidance memo could also mean that an adjustment applicant’s job changes may be subject to greater scrutiny than under current USCIS procedures. Though the draft guidance is limited to the framework for analyzing an adjustment applicant’s previous and new positions, a forthcoming Department of Homeland Security proposed regulation is expected in the coming weeks and could propose a formal petition procedure for adjustment applicants and their new jobs.