USCIS has issued a new policy memorandum (PM) outlining relevant considerations in assessing whether a position qualifies as a “same or similar” occupation to the foreign national’s previously approved job for purposes of portability. Section 204(j) of the Immigration and Nationality Act (INA) was created as part of the American Competitiveness in the Twenty-First Century Act of 2000 and permits applicants for adjustment of status to that of lawful permanent resident who are beneficiaries of approved Form I-140 petitions to change jobs or employers without re-testing the labor market or obtaining new approved petitions under certain circumstances. This PM has been made part of the Adjudicator’s Field Manual and will be used by USCIS officers in making 204(j) determinations for petitions pending or filed on or after March 21, 2016.

Section 204(j) provides that an approved I-140 petition for certain classifications remains valid for adjustment of status purposes even when an applicant changes jobs or employers if (1) an applicant’s application for adjustment of status (Form I-485) has been filed and remains unadjudicated for at least 180 days and (2) the new job is in the same or similar occupational classification as the job for which the petition was filed. The PM discusses the use of the Department of Labor’s Standard Occupational Classification (SOC) codes (breaking down the significance of each digit/group of digits in the code), including matching detailed occupational codes and analyzing differences in occupational codes within the same broad occupation. For I-140 applications that were not based on a previously approved labor certification, the applicant must establish the SOC code for both the original position and the new position, with supporting evidence from the intending employer to support the selected code. The PM discusses flexible analytical approaches to career progression and wage differentials between the originally sponsored position and the new position.

Ultimately, it is the applicant’s burden to establish by a preponderance of the evidence that the new position is the same or similar to the previously approved occupation. The reviewing officer will look at all relevant evidence, to include the job duties of the respective jobs, skills, experience, education, licenses or certifications required for both positions, the wages offered, and any other material and credible evidence provided. The PM is aimed at providing foreign workers and their employers increased flexibility and stability as they pursue permanent residence, but applicability of section 204(j) still requires careful analysis. Employers should proceed with caution and consult immigration counsel before shifting a previously approved employee into a new role.

For the USCIS policy memorandum, click here.