Section 204(j) of the Immigration and nationality Act (INA) provides for job portability for individuals living and working in the United States on an employment visa. The job portability provisions found in Section 204(j) can allow an individual to change jobs or receive a promotion while retaining their lawful immigration status. However, whether a job is portable is dependent upon whether one job holds “the same or a similar occupational classification” as the new job.
However, many individuals and employers have been hesitant to make use of this provision because of substantial uncertainty regarding how United States Citizenship and Immigration Services (USCIS) would adjudicate a matter under this provision. In order to promote increased certainty and use of the job portability provisions, USCIS has issued policy memorandum PM-602-0122.1 providing guidance as to USCIS procedures for making determinations as to whether two jobs share the “same or similar” occupational classifications.
USCIS Utilizes U.S. Department of Labor’s Standard Occupational Classifications
Whether a visa holder needs an employer to retest the labor market for their new position is dependent upon the process by which he or she obtained his or her visa. In the case where the visa holder has an approved I-140 petition for certain job classifications, the classification can remain valid for adjustment of status when Form I-485 is filed and remains adjudicated for 180 or more days and the new job is in the same or similar occupational classification as the for which the original petition was filed.
To determine whether a “same or similar” occupational classification exists, the filing party is required to submit evidence including the relevant DOL occupational classification codes. Furthermore, the applicant should also include evidence relating to the similarities of the job duties, required education and experience, training or certifications required, and wages offered for each job.
What an Applicant Must Establish to Make Use of Job Portability Provision?
Generally, an applicant for adjustment of status under Section 204(j) job portability must establish eligibility by a preponderance of the evidence. This is accomplished, as stated above, by showing that the job qualifies as a “same of similar” occupation.
Under the SOC job classification system, there are 23 major groups and further subdivisions of 97 minor groups, 461 broad occupations, and 840 detailed occupations. The occupational code consists of six digits with the first two digits constituting the major group, the third digit constituting the minor group classification, the fourth and fifth digits indicating the broad occupation and the sixth digit expressing the detailed occupation. Furthermore, managers and supervisors of workers in major groups 13-0000 through 29-0000 are generally classified along with the workers they supervise. Other managers who primarily direct and plan are classified into their own major group.
When attempting to prove a “same of similar” classification by the preponderance of the evidence, if all six digits of the occupation match then these positions are likely to be considered “same or similar.” However, a review of the relevant evidence may still show that the totality of the circumstances does not merit a favorable finding. Therefore, additional proof should always be provided beyond the occupational code. Likewise, if the evidence seems to suggest that the broad occupational codes are the same despite different detailed codes, favorable treatment of the petition is also likely.
The memo also contemplates the fact that promotion and career progression may not fit neatly under the above-stated scenarios that are likely to result in a favorable determination. The memo specifically cites a scenario where a worker may move from a non-supervisory or a non-managerial position into a supervisory or managerial position. Here the worker may submit evidence to establish that he or she is managing or supervising work that is the same or similar to their original occupation. This scenario is likely to result in a favorable determination provided that the applicant submits additional evidence showing that the totality of the circumstances suggests a same or similar occupation.
Rely on Dedicated and Strategic Orlando Immigration Lawyers
Businesses often rely on work visas to fill gaps in the labor market and to obtain workers with the skills and experience they require. The job portability provisions provided under Section 204(j) can allow businesses to retain and promote workers while maintaining lawful immigration status. However, the process must be thoroughly reviewed before any action is taken and properly handled to show that the job change is the “same or similar.”
The Tampa employment visa attorneys of Colombo & Hurd can help businesses avail themselves of this provision of the immigration code. To schedule a confidential immigration consultation at the firm’s Orlando or Miami law offices, call 800-549-5523 today or contact us online.
