Job Portability: Understanding “Same or Similar” in an I-140 World
Sometimes, foreign nationals wish to take a new position with their same employer or even with a different company during the green card process. This may be permitted so long as the new job offer is in the “same or a similar” occupational classification as the job offer for which the Form I-140 petition was filed. Under the provisions of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), job portability may be permitted without compromising the green card case.
What is Job Portability?
The term “portability” means a change in the offer of employment from one job or employer to another job or employer in a manner that allows an applicant to remain eligible for a Green Card without having to fill out a new I-140. For an applicant to change the offer of employment or employer, their Adjustment of Status Form I-485 must have been pending with USCIS for 180 days or more. Documentation must be submitted to USCIS to prove that the new position is in a “same or similar” occupation.
How does USCIS determine if the job is the “same or similar?”
There are multiple factors a USCIS officer will consider when deciding if two jobs are in similar occupational classifications for job porting purposes. USCIS officers will look at:
- DOL’s Standard Occupational Classification (SOC) system;
- The job duties of both positions;
- The skills, experience, education, training, licenses or certifications specifically required to perform each job;
- The wages associated with each position; and
- Any other relevant and credible evidence submitted by the applicant.
USCIS officers will consider the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes and make our determination based upon a preponderance of the evidence.
What happens if I get promoted?
A promotion will not disrupt the I-140 process if the applicant can prove the job change reflects a normal career progression. If the duties or functions now performed are similar or associated with the original position, then the job is likely portable. For example, if you move into a more senior but related position which is non-managerial, USCIS will use the criteria explained above to determine whether the original and the new positions are in the same or similar occupational classifications. Further, if you move into a managerial or supervisory role and establish that the new position involves managing the same or similar occupational classifications as your original position, USCIS may treat such evidence favorably.
To request portability, an applicant and the prospective employer must complete Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). This must be submitted by mail to USCIS or at the time of the interview.
For help with requesting job portability, or if you have questions on your I-140 application or how a job change may have impacted your I-140, please contact our office to schedule a consultation with one of our attorneys today!