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  • Article: Will The New Portability Rules Help You Get a Promotion? By Matthew D. Minor, Esq.

    Will The New Portability Rules Help You Get a Promotion?


    Since its inception, the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) has been not always been a clear set of rules when it came to changing your job after your I-485 had been pending. Sure, people understood that you could do it, but the mechanics and timing were never set in stone. On December 31, 2015, the Department of Homeland Security (DHS) published in the Federal Registrar the proposed rule aimed at codifying and clarifying the provisions of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) entitled, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (High-Skilled Worker Rule) This rule went into effect on January 17, 2017.
    We had a small preview of the flavor of this rule on March 18, 2016, when U.S. Citizenship and Immigration Services (USCIS) released their final policy memo entitled, Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability. This memo set out to establish how to determine that a new position is in the same or a similar occupational classification as the offer of employment for which a petitioner’s original I-140 was filed. The memo suggests that material information from alternative resources or the job duties for the positions can also be considered in showing same or similar. However, the memo focuses heavily on the DOL occupational classification codes (Standard Occupational Classification Codes or SOC code) assigned to the respective jobs.
    USCIS believes that SOC codes provide better objectivity in determining whether a job is in the same or a similar occupational classification for purposes of 204(j) portability and thus help address the uncertainty in the portability process. The memo does note that SOC codes or their descriptions are not the only factor or a mandatory factor in portability determinations. USCIS recognizes in the memo that under normal career progression an individual’s occupation in a specific SOC code category may advance to a corresponding and related occupation in the specific group for managers. In other instances, career progression may involve a similar analysis, such as when an individual moves from a non-managerial and non-supervisory position into a managerial or supervisory role. In these cases, if evidence provided by applicants establishes that, in their new positions, they are primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions, adjudicating officers may treat that evidence favorably in determining whether the two jobs are in similar occupational classifications for purposes of 204(j) portability. In short, USCIS appears ready to acknowledge that if you are getting promoted to a managerial position if you can show this is the natural career progression and/or that you are managing persons that perform your former job duties/function, USCIS will treat that as a same or similar occupation for AC21 portability purposes.
    While there were many interesting benefits included in the High-Skilled Worker Rule, this article will focus on the changes to AC21 § 106(c)’s portability provision, specifically how a same or a similar occupation will be determined moving forward. As you know an employment-based immigrant visa petition (I-140 for EB-1, EB-2, or EB-3) will remain valid with respect to a new qualifying job offer when the worker changes jobs or employers if an application for adjustment of status (I-485) has been filed and remains pending for 180 days or more and the new job offer is for a job which is in the same or a similar occupational classification as the job for which the original immigrant visa petition was filed.
    Because the statute does not define the terms “same” or “similar,” DHS proposed definitions for those terms be based on their common dictionary definitions, as well as the agency's practice and experience in this context. Uh oh! The rule defines “same occupational classification” as an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” is defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved. USCIS will consider the following factors to determine similarity: the job duties of the respective jobs, and the skills, experience, education, training, licenses or certifications specifically required to perform each of the jobs. The stated goals of this new regulation is to provide stability and job flexibility to certain individuals with approved employment-based immigrant visas, clarify the definition of “same or similar occupational classifications” and allow certain foreign workers to advance and progress in their careers. This was not exactly a ground breaking announcement but it is good to know where USCIS is coming from when you start to make your argument for same or similar.
    The main changes to a request for portability is in the process. USCIS introduced a new Supplement J to Form I-485, Request for Job Portability Under INA Section 204(j) that must accompany requests for portability. Prior to this there was no formal format for a portability request. The new offer of employment, including qualifying self-employment, that is in the same or similar occupational classification as the original job should accompany Supplement J, as well as any supporting material and credible documentary evidence.
    An interesting note from the comments to this rule was about providing information about the employer. Some commenters suggested that the questions on the Supplement J requiring employers to provide information on their type of business, gross and net annual income and number of employees is not relevant to a portability determination. USCIS agreed but said the information was still helpful in determining whether two jobs are in the same or similar occupational classification or whether the job offered in the underlying I-140 is still available. So be ready to have a discussion with your employer about providing company information in regards to your request to port.
    All in all, beneficiaries of a pending I-485 should have a better view of what to expect when they feel a need to change jobs. The characteristics of what makes a new job similar to an old one will be more defined and USCIS appears to be committed to using a more broad approach and flexible attitude when reviewing cases. What will be interesting to watch going forward is how this new more broad approach and flexible attitude coexists with the new bright line definitions and their application by Officers? So, whether you are climbing the corporate ladder into management or seeking a better opportunity with a new employer, talk to an attorney to help you better understand what you need to do to further your career in the United States.

    Reprinted with permission.

    About The Author

    Matthew D. Matthew D. Minor, Esq. is an attorney with Hammond Law Group. His practice focuses on representing IT/engineering staffing companies. He also handles manufacturing and other cos. with multi-national offices. He handles H and L nonimmigrant visas and permanent residency cases.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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