USCIS Issues Memo On Job Changes For Green Card Seekers

[Roy&Chanel 109]

Not sure if I am posting at the right thread or this has been posted before.

Law360, New York (November 23, 2015, 9:20 PM ET) -- U.S. Citizenship and Immigration Services posted a draft memo on Friday providing additional guidance on how to determine whether two positions fall into a “same or similar” category, when it comes to certain green card hopefuls who are seeking to change jobs.
In a draft policy memo for its immigration officers, the USCIS laid out guidelines for determining whether a new job sought by an immigrant waiting in line for a green card falls within the “same or a similar occupational classification,” which is important for keeping their current immigration paperwork valid.

The issue springs from an Immigration and Nationality Act section designed to give more flexibility to foreign workers stuck in long visa backlogs. The provision allows immigrants who are applying for adjustment of status to permanent residency — and who have a valid immigrant worker petition known as the Form I-140 — to change jobs in some circumstances, according to the USCIS.

In order to switch jobs and preserve the validity of the I-140 petition, the adjustment of status application needs to have been pending for at least 180 days and the new position must be in a “same or a similar” job category as the one covered by the petition, the agency said.

The USCIS noted an applicant can submit a host of evidence to show that the new position is in a same or similar classification, including occupational classification codes from the U.S. Department of Labor, job duties and wages.

The agency also reminded immigration officers that adjustment of status applicants, or green card seekers, who are requesting job portability only needs to meet the requirements under a “ preponderance of the evidence” standard.

“In other words, the applicant must show that his or her claim is more likely the case than not,” USCIS said. “This is a lower standard of proof than that of ‘clear and convincing evidence’ or the ‘beyond a reasonable doubt’ standard.”

The agency emphasized the DOL’s “Standard Occupational Classification” system, in which workers are categorized into separate job classifications. Immigration officers can use SOC codes to compare the two jobs at hand, the memo stated.

The agency also provided guidance on portability when it comes to career progression, and noted that the offered wages for the two positions can be considered when figuring out whether they meet the portability requirements.

“USCIS will be able to perform its adjudicatory function most effectively if an applicant explains any substantial discrepancy in wages between the original position and the new position in detail,” the agency said.

Stakeholders will be able to weigh in on the draft policy memo until Jan. 4. When reached for comment, a USCIS representative said the memo spoke for itself.

The memo was posted a day after the U.S. Department of Homeland Security, which is the USCIS’ parent department, submitted a proposal to the Office of Management and Budget to provide “job flexibility” to the beneficiaries of approved employment-based immigrant petitions. That proposed rule is currently slated for publication sometime in December, according to the notice.

--Editing by Kelly Duncan.​

http://www.law360.com/articles/730206/uscis-issues-memo-on-job-changes-for-green-card-seekers

Edited December 11, 2015 by Roy&Chanel

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