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Pending Green Card Applications Don’t Need to Stand in the Way of Promotions

An employee’s career may continue to advance, without pause, even if the employee has a green card application pending. Section 204(j) of the Immigration and Nationality Act (“INA”) provides that an approved Form I-140 for individuals with certain employment-based visas will remain valid for green card adjustment of status purposes when an applicant “ports” (changes jobs or employers) if: (1) a Form I-485 has been filed and remains unadjudicated for 180 days or more and (2) the new job is the same or similar occupational classification as the job for which the petition was filed. In such cases, the individual may change jobs or even employers without having to file new I-140 petitions or labor certifications. 

Employment-based visas that can qualify for Section 204(j) portability include EB-1 (Outstanding Professors and Researchers; Certain Multinational Executives and Managers); EB-2 (Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability); and EB-3 (Skilled workers, professionals, and other workers) visas.

While Section 204(j) of the INA has been in effect since 2000, the U.S. Citizenship and Immigration Services (“USCIS”) perceived under-utilization of portability under this provision. Concerned that the low popularity of porting was due to confusion or lack of clarity in the standards the agency used to determine whether to authorize porting, the USCIS issued a policy memorandum this spring that supersedes all prior letters, memoranda and other agency-provided information on this issue.

Under the USCIS policy memorandum, an officer reviewing whether a pending green card application can be ported to a new job is to apply a totality-of-the-circumstances approach and use a preponderance of the evidence standard. For example, the officer determines if the new job is more likely than not to be either the same or a similar occupational classification by evaluating evidence such as DOL occupational classification codes assigned to the old and new jobs; the job duties required for each job; the skills, experience, education, training, licenses or certifications specifically required to perform each job; and the compensation offered for each job. In situations where an individual is promoted into a more senior but related position, neither of which has a managerial or supervisory function, the reviewing officer is to evaluate the positions based on all of the preceding factors and any other relevant evidence provided. 

However, where an individual moves from a non-managerial or non-supervisory role into a managerial or supervisory position, the jobs may be considered sufficiently “similar” for porting purposes if the evidence shows that in the new position, the individual job will be primarily responsible for managing (a) the same or similar functions of the previous or (b) the work of individuals whose jobs are in the same or similar occupational classifications as the individual’s previous position.

The policy memorandum has been incorporated in the Adjudicator’s Field Manual. Employers with employees on employment-based visas who have applied for green card status should review the standards provided in the policy memorandum before deciding whether the employee could take a different position or be promoted without jeopardizing the pending application.

 

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.