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USCIS Issues Policy Memo on Green Card Portability Standards
Practical Law Legal Update w-001-7560 (Approx. 4 pages)
USCIS Issues Policy Memo on Green Card Portability Standards
by Practical Law Labor & Employment
| Published on 23 Mar 2016 • USA (National/Federal) |
US Citizenship and Immigration Services (USCIS) issued a policy memorandum (PM) providing guidance to Immigration Services Officers (ISO) evaluating whether jobs are in the "same or a similar occupational classification" for purposes of a foreign worker moving to a new job and retaining his pending green card case using the Immigration and National Act's (INA) green card portability provisions.
On March 18, 2016, US Citizenship and Immigration Services (USCIS) issued a final policy memorandum (PM) consolidating and explaining USCIS's policy in evaluating whether jobs are in the "same or a similar occupational classification" for purposes of a foreign worker moving to a new job and retaining his pending green card case using the Immigration and National Act's (INA) green card portability provisions.
The INA's green card portability provisions contained in the American Competitiveness in the 21st Century Act of 2000 (AC21) allow I-485 adjustment of status applicants to change jobs and have the I-140 petition filed by their initial employer remain valid if the applicant's:
- I-485 application remains unadjudicated for 180 days.
- New job is the same or in a similar occupational classification as the prior job.(INA § 204(j) (8 U.S.C. § 1154(j)); AC21 § 106(c)(1).)
Generally, establishing that a new position is in the same or similar occupational classification as the applicant's original employment offer from the Form I-140 petition requires the applicant to submit evidence regarding:
- The DOL standard occupational classification (SOC) codes for each job.
- The job duties, skills, experience, education, training, licenses, or certifications required to perform each job.
- The wages offered for each job.
- Any other material and credible evidence relevant to the "same or similar occupational classification" determination.
The PM:
- Addresses concerns that the green card portability provisions were not being used because of uncertainty about how USCIS would adjudicate these cases.
- Provides additional guidance for Immigration Services Officers (ISO) on using the six-digit SOC codes to determine if a new job is in the same or similar occupational classification.
The PM directs ISOs to:
- Evaluate whether the I-140 petition that was filed for the applicant either:
- is supported by one or more DOL PERM labor certifications (meaning the DOL certified the SOC for the original position and the applicant only needs to establish the proper SOC for the new position); or
- did not require DOL certifications (meaning that the applicant must establish the proper SOC for both the original and the new position).
- Generally treat evidence favorably if the applicant establishes by a preponderance of the evidence that the SOC codes for the original and the new positions:
- are the same (all six digits match); or
- are distinct but within the same broad occupation code.
- Consider the totality of the circumstances, including in cases involving "career progression," where the applicant has an opportunity for career advancement. In those cases, the PM states that in making the "same or a similar occupational classification" determination, the ISO may treat favorably evidence from the applicant establishing that in the new position, the applicant will primarily be responsible for managing:
- the same or similar functions as the applicant's original job; or
- individuals in the same or similar occupational classification as the applicant's original job.
The PM applies to all green card portability determinations pending or filed with USCIS on or after March 21, 2016.