How USCIS Determines Same or Similar Occupational Classifications for Job Portability Under AC21
If you have a pending Form I-485, Application to Register Permanent Residence or Adjust Status based on employment, you may be able to change the job or employer on which your Form I-140, Immigrant Petition for Alien Worker, is based as 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. For you to change the offer of employment or employer, your Form I-485 must have been pending with USCIS for 180 days or more. You may request to “port” your job offer using the Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). See section 204(j) of the Immigration and Nationality Act (INA), which was enacted from section 106(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), for more information.
The term “port” or “porting” means to change the offer of employment from one job or employer to another job or employer in a way that allows an applicant to remain eligible for a Green Card without having a new Form I-140, Immigrant Petition for Alien Worker filed, for the applicant.
The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of the SOC system is to organize occupational data and classify workers into distinct occupational categories. The SOC system covers all occupations where work is performed for pay or for profit. Occupations are generally categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job.
The SOC system is organized using codes, which generally consist of six numerical digits. For example, the SOC code for a stonemason is 47-2022.
- -2022: The first two digits, “47” represent the major group, which includes all construction and extraction occupations.
- 47-022: The third digit, “2” represents the minor group, which includes all construction trade workers.
- 47-22: The fourth and fifth digits, “02” represent the broad occupation, which includes brickmasons, blockmasons, and stonemasons.
- 47-202: The sixth digit, “2” represents the detailed occupation, which only includes stonemasons.
- 47-0000 Construction and Extraction Occupations
- 47-2000 Construction Trades Workers
- 47-2020 Brickmasons, Blockmasons, and Stonemasons
- 47-2022 Stonemasons
No occupation will be assigned to more than one category with six digits.
A USCIS memorandum, Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability instructs USCIS officers that they may refer to DOL’s SOC system in making portability determinations. This memo also instructs officers to consider additional resources such as DOL’s Bureau of Labor Statistics’ Occupational Outlook Handbook as well as the DOL’s Bureau of Labor Statistics’ Occupational Employment Statistics Database as part of the analysis.
How USCIS Determines a Same or Similar Occupational Classification
USCIS officers consider multiple factors when deciding if two jobs are in similar occupational classifications for job porting purposes. USCIS officers may compare factors including, but not limited to:
- DOL’s SOC system
- The job duties of both positions
- The skills, experience, education, training, licenses or certifications specifically required to perform each job
- The SOC code from the Form I-140, Immigrant Petition for Alien Worker, the ETA Form 9089, Application for Permanent Employment Certification (PDF) (if applicable), and the appropriate SOC code for the new position as identified on the I-485 Supplement J
- The wages associated with each position
- 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.
USCIS Does Not Simply Compare Numbers in the SOC Code
As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer. When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. However, there is no specific rule for matching any particular order of digits in two SOC codes.
In the example in the Occupational Classifications section above, the “47” encompasses all construction and extraction occupations, which is a broad category and would not determine whether two jobs are similar. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar.
For example, the SOC code for a stonemason is 47-2022. The job description for a stonemason is:
Build stone structures, such as piers, walls, and abutments. Lay walks, curbstones, or special types of masonry for vats, tanks, and floors.
The SOC code for a boilermaker is 47-2010, which contains the same first four numbers of the stonemason’s SOC code (47-20). However, the job description for a boilermaker is significantly different from that of stonemason:
Construct, assemble, maintain, and repair stationary steam boilers and boiler house auxiliaries. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints. Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Assist in testing assembled vessels. Direct cleaning of boilers and boiler furnaces. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines.
In reviewing two positions within the same broad occupational classification, USCIS will consider factors such as the similarity of the duties, experience, or areas of study associated with each position.
How Wages Factor into USCIS’ Determination
The March 18, 2016 memorandum indicates that USCIS may consider the wages offered for the original position and the new position when determining whether the two positions meet the requirements for job portability. However, USCIS will not necessarily conclude that the two positions are the same or similar based solely on whether the wages are the same or not. USCIS takes into consideration factors such as normal raises that occur over time to account for inflation or promotion, the fact that the two positions might be located in different geographic locations or economic sectors, possible corporate mergers that could affect compensation structures, as well as moving from a for-profit to a non-profit employer.
If You Change Jobs or Get Promoted
If you change jobs or receive a promotion, USCIS will determine whether you remain eligible for a Green Card on a case-by-case basis and based upon the totality of the circumstances. You must establish by a preponderance of the evidence that the relevant positions are in similar occupational classifications. 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.
You may still be eligible for 204(j) portability if you are able to establish through a preponderance of the evidence that your job change reflects a normal career progression, even if you are not managing anyone whose job is in the same or similar occupational classification as your position, if you can demonstrate that you are performing or overseeing some of the same types of duties or functions that are associated with your original position.