It is commonly known that H-1B workers can port to new employment, even while a new H-1B petition is pending approval. Permanent Electronic Review Management (PERM) and certain other employment-based applicants can also port to new employment when they are in the adjustment of status (AOS) period for 180 days or more – provided that the new job is the same or similar. In addition, applicants with underlying PERM cases can port as often as they want and extend their stay as long as necessary, even if their priority dates retrogress.
After years of uncertainty around what qualifies as 'the same' or 'similar', US Citizenship and Immigration Services (USCIS) has issued a draft memo that provides definitions and interpretive guidance.
Because definitions of 'the same' or 'similar' are not provided in the Immigration and Nationality Act, USCIS has employed the dictionary definitions. 'The same' means "identical" or "resembling in every relevant respect", and 'similar' means sharing "essential qualities" or a "marked resemblance or likeness".
Further guidance can be found by looking at the job descriptions in the Standard Occupational Classification – a government study that organises all occupations in the United States into 23 major groups, 97 minor groups, 461 broad occupations and 840 detailed descriptions.
Information technology positions
Of interest to the information technology (IT) community is the fact that many IT positions meet the same or similar test for porting because they belong to one major group: Computer and Mathematical Occupations (15-0000).
The Department of Labour gives several examples of occupations in this group that meet the same or similar test:
- Computer Programmer (15-1131);
- Software Developer, Applications (15-1132);
- Software Developer, Systems Software (15-1153); and
- Web Developer (15-1154).
Jobs with same classification code not automatically the same or similar
Jobs with the same broad classification code are not automatically considered to be the same or similar. Differences may prevent favourable classification when the duties of the jobs are dissimilar (eg, if one is primarily technical and the other is primarily supervisory). Other distinctions – such as normal career progression, increased responsibility, salary changes and special skill levels – may be permitted.
Jobs with different classification codes can be the same or similar
Conversely, jobs that have different broad classification codes can be the same or similar when the job duties are similar, or when differences in classification depend on the size or nature of the employer. For example, the Department of Labour has stated that Computer and Mathematical Occupations (15-0000) can provide possible matches for jobs in Architecture and Engineering Occupations (17-0000).
Another important requirement for porting is that an AOS application cannot be approved if the underlying I-140 petition has been denied, which can lead to unexpected problems. It is unlikely that an employer would continue to pursue the approval of an I-140 petition for a worker who ported to work elsewhere before it was approved.
Workers whose I-140 petitions have already been approved should be prepared to prove the validity of the new job, including the legal status of the new employer, the existence of a genuine job offer and the ability of the new employer to pay the wages.
Employers who sponsor workers for H-1B visas must report that workers have ported or departed from the country. However, the reporting rule does not extend to AOS applicants on whose behalf an I-140 petition has been filed.
While some workers may choose to report their new employment to USCIS voluntarily, others may simply keep the documentation as proof that they ported in accordance with the laws and policy guidelines.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email ([email protected]). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.
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