JUNE 2016
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Employment-Based Green Card Application Pending? What You Need to Know Before Changing Jobs

Dilip Patel


The federal immigration service recently published a new policy memo regarding “porting.” The new provision permits green card applicants who are beneficiaries of a valid I-140 petition to change jobs or employers in certain circumstances without filing a new PERM and I-140.

To successfully change or port jobs/employers, the beneficiarys green card application (I-485) must be pending for at least 180 days. The new job must be in the “same or similar” occupational classification as the job for which the I-140 was originally filed. But how do you know whether your I-140 job and your new job are the same or similar?

Here’s some guidance found in the policy memo.

First, take a look at the “SOC” code listed on the labor certification (the PERM form filed with your I-140, page 2). The code is based on the job. For example, 15-1134 is for Web Developers. That six-digit number should be your primary focus when considering whether to accept a new position/employer.

Your goal is to choose the job that won’t change your SOC code because the United States Citizenship and Immigration Services will look at the new job duties to determine the proper SOC code. Other factors such as salary, title, education, etc. are considered, but nothing carries more weight than the actual job duties the beneficiary will perform. (The government-approved job duties for SOC codes can be found at www.onetonline.org.) If the SOC code from the I-140 petition is identical to the SOC code selected for your new position, USCIS will acknowledge it as the “same or similar” occupation.

If the last digit is different, say, 15-1133 (Software Developer, Systems), the USCIS adjudicator will review your job duties to determine the actual degree of overlap. Some professions overlap considerably and may count as “similar,” while others do not. A good indicator is the first two digits, “15” in this case. Every computer and mathematical occupation starts with 15, so you have a good chance of finding a similar occupation for porting with the “15” major group.

If your new job causes a change in the first two digits of your I-140 SOC code, you are likely outside the scope the “same or similar” job and your green card is at risk, except in one case: promotion to a managerial position. All managers have an SOC code that starts with 11. A Software Developer, Systems, (15-1133) who is promoted to manager will likely be classified as 11-3021, Computer and Information Systems Manager. Because the portability provision is intended to encompass promotions, a comparison of the job duties of a software developer and their manager will reveal significant similarities because of the technicalities of the field.

However, not all promotions are handled equally. An individual who has a valid I-140 for a cook position cannot accept a promotion to restaurant manager: The job duties are significantly different in that case.

The policy memo guidance issued by USCIS is intended to give foreign nationals more clarity and thus more job flexibility while they wait for their green cards. Before changing jobs or accepting a promotion, discuss any and all implications on your green card with your immigration attorney.

Updates from DOL regarding PERM process Insights For Employers

For many employers who wish to sponsor a foreign national on an employment basis, they must take steps to establish that there are no willing, qualified, and able U.S. workers available for the position, and that the foreign national will be paid the prevailing wage for the job. This portion of employment-based permanent immigration is handled by the Department of Labor (DOL) and is called PERM labor certification.

During this past fiscal year, DOL adjudicated 89,151 PERM cases, a 17 percent increase in the number of such cases filed. In late February, DOL met to discuss the labor certification process.

The resulting report contained three issues that employers will want to consider when pursuing a PERM application: potential fees, job titles, and skill experience.

Perhaps most disheartening about the report is the indication that DOL is considering instituting fees for the PERM process. Today, filing a prevailing wage request and a labor certification is free. But, because of a lack of funding to address the growing number of cases and backlogged audits, DOL is looking for filing fees to cover costs and it is looking to employers. As an example of the need for increased funding, DOL reported that prevailing wage determinations, the first step in the PERM process, now take longer than 60 days to reach a determination because of low staffing and funding. While there was no indication when filing fees would be implemented, they are on the horizon.

Another issue in the report is the job title of the offered position. Employers often have their own ideas about how they want to title a position, what experience will be required, where and how they want to recruit, and how much the salary will be. Those ideas rarely align with DOLs expectations, especially job titles and salary. For example, the DOL report confirmed that positions with words such as “senior,” “chief,” or “journeyman” in the title will merit a higher salary, often $8,000 to $12,000 more than expected, even if the position is entry level. Employers should be mindful of that before adding arbitrary titles to entry-level positions because it will make a difference in DOLs salary assignment.

Also, when an employer is recruiting for a position that requires three years of experience and a specific skill (like C++ programming), they must be sure that their intended foreign worker has both three years of experience and three years of that specific skill. DOL has been issuing denials over imputed quantification of the specific skill. DOL acknowledged that practice in the report and did not express any desire to change. Likewise, DOL has been unkind to employers who describe the salary as “competitive,” “negotiable,” or “depends on experience,” or who fail to include any offered housing in the advertising language.

The PERM process is unforgiving, but if employers know what to expect, and how to align their business needs with DOL regulations, chances of a successful PERM filing increase dramatically. That’s best accomplished when employers are educated about the basics of PERM applications and work with their attorneys.

USCIS Proposing To Cancel Interim Employment Authorization (EAD) Cards

Under current regulations, if an initial applicant for work authorization does not receive a decision within 90 days of filing, USCIS must issue an interim work card. However, USCIS recently proposed a rule that will eliminate that obligation. If accepted, the result of this new rule would affect employment-based visas dependent on the EAD card, family-based green card applicants, foreign students, U visa recipients, asylum applicants, and individuals in removal proceedings. In the context of adjustment of status, work authorization and advance parole travel authorization are adjudicated together, thus the new rule could have a negative effect on the issuance of combo cards. The proposal does provide for automatic extensions for applicants who apply to renew their previously granted EADs. Comments to the proposed regulation were due in late February. I’s unclear when final rules will be promulgated.

Dilip Patel of Shutts, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail dpatel@shutts.com.

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