Under INA 204(j), certain applicants with pending employment-based adjustment of status applications are able to change jobs. To be eligible for this benefit, the applicant must have an approved I-140 (or a pending I-140 that is ultimately approved), the adjustment application must have been pending for at least 180 days and the new job must be in the same or a similar classification as the prior job.
The first two requirements for 204(j) job portability are objective requirements: The I-140 must be approved and adjustment of status must be pending for 180 days or more. The final requirement, that the new job be in the same or a similar occupational classification as the previous job, is more subjective. Some applicants have turned down jobs out of fear that the new job will not be found to be in the same or a similar occupational classification. To address these concerns, USCIS released a policy memo in March 2016 to provide additional guidance as to how immigration officers should determine whether a job is in the same or a similar occupational classification.
How will the government decide whether the new job is the same or similar as the prior job?
To determine whether a new job is in the same or similar occupational classification, the immigration officer will look at many factors, including the Department of Labor occupational classification codes, the job duties & job requirements (for example, the required education, experience, skills, training, licenses, etc), the wages offered and any other relevant, credible evidence that the applicant or new employer would like to submit. USCIS will look at the totality of circumstances when making these determinations. If the applicant says that the new job is the same, USCIS will determine if the jobs are identical. For a similar job, USCIS will determine whether the jobs share essential qualities.
If I am being promoted or moving into a managerial or supervisory role, will this be considered a similar job?
Cases where the applicant’s new job involves career advancement may still qualify for portability. For example, a junior accountant who is taking a new job as a senior accountant would likely be able to show the job was similar enough to qualify for portability. If the new job involves being a manager or supervisor and you are primarily managing people whose jobs are the same or similar as your prior job, this would help support the argument that the new job is similar to the prior one. Depending on the job duties of each position, it may be possible to port even when you are not managing people in positions similar to your prior position. In all cases of career progression, USCIS officers must consider the totality of the circumstances so any evidence that you can provide to show that the job duties are similar and/or that the new job is part of a normal career progression should be included.
If I change jobs, do I need to submit anything to U.S. Citizenship & Immigration Services?
Yes, if you are changing jobs you must submit a job portability request to U.S. Citizenship & Immigration Services using Form I-485, Supplement J. This supplement must be filled out by the applicant and the new employer. The form asks for details on the new job offer. You should also submit a copy of your I-485 receipt notice to show that your I-485 has been pending for 180 days or more, a copy of your approved or pending I-140 (if available) and evidence that your new job is in the same or a similar occupational classification as the previous job.
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