In a draft policy memorandum to its officers, U.S. Citizenship and Immigration Services has fleshed out the criteria used to determine whether a green card applicant has moved to a “same or similar job” for purposes of preserving an approved immigrant visa petition.

The issue of portability is important to tens of thousands of immigrants waiting in backlogged categories who may seek to change jobs without jeopardizing their place in line. Applicants may preserve an approved I-140 petition if they move to a “same or similar job” and their adjustment of status application has been pending for 180 days or more.

Below is a summary of some key provisions of the draft memorandum:

  • Standard of proof

In reviewing a request of portability to a new employer, immigration officers will consider the “totality of the circumstances,” and an applicant is required to prove only by a “preponderance of the evidence,” i.e., that it is more likely than not, that the new job is the same as or similar to the original job.

  • Job classifications

Officers may refer to the Standard Occupation Classification (SOC) codes published by the Labor Department to determine whether two jobs are the same or similar. Jobs that share the same six-digit code will generally be considered to be in the same job classification; two jobs grouped under the same broad job classification may be considered similar, depending on whether they share the same duties, experience and educational backgrounds.

  • Career progression

Officers will recognize career progression in comparing two jobs. When an individual moves into a more senior but related position that does not have a managerial or supervisory role, the guidance instructs officers to “consider whether the original position and the new position are in the same or similar occupation classifications.”

Where the new position involves managing the same or similar functions of the original job or the work of others whose jobs are the same or similar to the applicant’s original job, officers “may treat such evidence favorably in determining whether the two jobs are in similar occupational classifications.” Even if the new job does not involve managing workers in the same or similar occupational classifications as the original position, the applicant may show that he or she is overseeing some of the functions of the original job to demonstrate that the two jobs are similar.

  • Variations

Even if the two jobs are not grouped together under the SOC codes or do not reflect career progression, based on the totality of the circumstances, if the two jobs “share essential qualities or have a marked resemblance or likeness, the individual may be eligible to port to the new position.” The draft guidance also notes that “variations in job duties arising from performing jobs for different employers, including employers in different economic sectors, do not necessarily preclude two positions from being in similar occupational classifications.”

Wage differences or similarities are not conclusive in determining whether or not two jobs are similar. Allowances should be made for normal raises and for different sectors, geographical locations and other characteristics of the employers. The guidance indicates that applicants should explain any “substantial discrepancy in wages between the original position and the new position in detail.”

DHS expected to propose rule
The Department of Homeland Security has also announced that it is working on a rule aimed at employment-based green card applicants who are waiting in backlogged visa categories. According to a summary published by the Office of Management and Budget, the rule proposes to “provide stability and job flexibility” to applicants with an approved employment-based immigrant visa petition while they wait to become lawful permanent residents. The proposed rule is expected to be published in December.

BAL Analysis: The memorandum is set to take effect March 21, 2016. Employers and other immigration stakeholders may comment on the draft memorandum until Jan. 4, 2016, by submitting comments directly to DHS or by working with their BAL representative.

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