Is Your Employment-Based Green Card Application Pending? What You Need to Know Before Changing Jobs
USCIS recently published a new policy memorandum regarding a provision in the law that permits green card applicants who are beneficiaries of a valid I-140 petition to change jobs or employers in certain circumstances without having to file a new PERM and I-140. This is known as “porting.” To successfully change or port jobs/employers, the beneficiary’s green card application (I-485) must be pending for at least 180 days and the new job must be in the “same or similar” occupational classification as the job for which the I-140 was originally filed. But, how do you know if your I-140 job and your new job are the same or similar? The following guidance is found in the policy memo.
First, take a look at the “SOC” code that was listed on the labor certification (the PERM form filed with your I-140, page 2). The code is based on the job. For example, 15-1134 is for Web Developers. This six-digit number should be your primary focus when considering whether to accept a new position/employer. Your goal is to choose the job that will not result in any changes to your SOC code because USCIS will look at the new job duties to determine the proper SOC code. While other factors like salary, title, education, etc. are considered, nothing carries more weight than the actual job duties the beneficiary will perform. (The government-approved job duties for SOC codes can be found at www.onetonline.org.) If the SOC code from the I-140 petition is identical to the SOC code selected for your new position, USCIS will acknowledge it as the “same or similar” occupation.
If the last digit is different, say, 15-1133 (Software Developer, Systems), the USCIS adjudicator will review your job duties to determine the actual degree of overlap. Some professions overlap considerably and may count as “similar,” while others do not. A good indicator is the first two digits, “15” in this case. Every computer and mathematical occupation starts with 15, so you have a good chance of finding a similar occupation for porting with the “15” major group.
If your new job causes a change in the first two digits of your I-140 SOC code, you are likely outside the scope the “same or similar” job and your green card is at risk, except in one case — promotion to a managerial position. All managers have an SOC code that starts with 11. A Software Developer, Systems, (15-1133) who is promoted to manager will likely be classified as 11-3021, Computer and Information Systems Manager. Because this portability provision is intended to encompass promotions, a comparison of the job duties of a software developer and their manager will reveal significant similarities because of the technicalities of the field. However, not all promotions are handled equally. An individual who has a valid I-140 for a cook position cannot accept a promotion to restaurant manager — the job duties are significantly different in that case.
The policy memo guidance issued by USCIS is intended to give foreign nationals more clarity and thus more job flexibility while they wait for their green cards. Before changing jobs or accepting a promotion, discuss any and all implications on your green card with your immigration attorney.