11.24.15

More Job Flexibility Proposed?

The United States Citizenship and Immigration Services (USCIS) just released a draft to help its officers in deciding whether an individual can keep his or her green card application after changing jobs. Background: Under employment-based immigration, one can self-petition based on one's record of accomplishments or have an employer file based on the results of a labor-market test (PERM) or transfer within a multinational company. These options require filing the Form I-140 immigrant petition and then the Form I-485 adjustment of status application. One cannot file the I-485 application however until a visa number is available for one's preference category and for one's country of birth. Congress sets an annual limit on visa numbers and a high demand from certain countries, e.g., China and India, results in long waiting times. Given that I-140s are usually based on specific job opportunities, the long waiting times practically translate into not allowing the individuals from changing their jobs, even with the same employer. In 2000, Congress enacted the "American Competitiveness in the Twenty-First Century Act of 2000" (AC21) which provided some flexibility. AC21 would allow an individual to change jobs under the following circumstances:
  1. Form I-485 had already been filed for at least 180 days prior to any job change AND
  2. New job opportunity was of the "same or similar" occupation.
Since 2000, there has been minimal guidance on what is "same or similar." In November 2014, President Obama announced that his goal was to provide some guidance and flexibility in this area. USCIS just issued a draft proposal for commenting on this very topic. Proposal: USCIS proposed that its officers would have to determine whether someone who had changed jobs had changed to one that was in the "same or similar" occupation. If so, then the individual could keep the pending application. If not, then the individual would have abandoned the application and start all over. USCIS indicated that "same" would mean that the jobs were "identical," "resembling in every relevant respect," or "the same kind of category or thing." As for "similar," USCIS proposed that officers should look at the totality of the circumstances. These circumstances include the following:
  1. Standard Occupational Classification (SOC) Codes: The U.S. Department of Labor (DOL) has created an extensive system of classifying occupations and USCIS has indicated that officers should look to this system for assistance. When filing a PERM application, at the prevailing wage determination phase, DOL will assign a SOC code to the specific job. Where the employer does not need to go through PERM, USCIS has indicated that the burden is on the employer/individual to prove the SOC code of the old and new jobs. The SOC code itself is not the only factor.
  2. Career Progression: USCIS will examine whether the changes in job duties are a result of a natural career progression.
  3. Wage Differences: USCIS has also indicated that it will take into consideration whether wage differences based on more senior duties, changes in the market, and even geographic differences.
Impact: The above is just a proposal at this time, but once finalized it is welcomed guidance. Attorneys at Clark Lau LLC have been using the first test, i.e., the SOC codes, in assisting employers and individuals in determining whether a new job is of the "same or similar" occupation and whether employers and individuals could keep an ongoing application. We will continue to do so and will keep you updated as to any further changes or guidance. The above is provided as information only; please do not hesitate to contact your Clark Lau LLC attorney to see how the above could impact your specific facts.