USCIS published today a draft policy memorandum to help clarify whether a new job is in the “same or similar occupational classification” for purposes of Section 204(j) Job Portability for permanent residence. Job portability permits a foreign national to change jobs to one that is the “same or similar” when s/he has an approved Form I-140 and an application for permanent resident status (Form I-485) pending for more than 180 days. Despite several USCIS memoranda on this topic over the years, USCIS adjudications have been largely unpredictable in terms of assessing whether portability applies.
Employment portability is one of the items discussed by President Obama as part of his November 2014 Executive Action announcement to improve the high-skilled immigration system. USCIS is openly seeking public comment and review of this draft policy memorandum and intends to make the memorandum effective March 21, 2016.
This memorandum clarifies that USCIS will look at Standard Occupational Classification (SOC) Codes in the same SOC “broad occupations,” specifically for occupations that share the same duties, experience, and education backgrounds and that have largely similar duties and areas of study associated with each classification. This analysis could be particularly beneficial to physicians who move from primary care to subspecialty positions, a vexing question that is currently unanswered. The memorandum also recognizes that career progression must be considered in the “same or similar” analysis and that differences in wages is not conclusive evidence, particularly in different economic sectors. This will be helpful to professionals who are subject to the per country quota but are advancing professionally.
Because this is a draft policy memorandum, USCIS adjudicators are not yet bound by this guidance. If you have questions about whether a job is in the “same or similar occupational classification,” or need assistance with the comment process, please contact SPS Immigration PLLC.