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Switching Jobs Amidst the Visa Retrogression

Immigrant workers facing significant backlogs in their adjustment of status applications (I-485) because of the visa retrogression may change jobs when certain eligibility requirements are met.

These requirements are spelled out under the American Competitiveness in the 21st Century Act (AC21) which was passed in 2000. The I-485 application must have been pending for 180 days or more and the new job is in the “same or similar occupational classification” as the job for which the employment-based immigrant visa petition (EB1, EB2 or EB3) was filed.

The 180-day period refers to calendar days and begins from the date the I-485 application was received by the USCIS according to the receipt notice.

The “same or similar occupational classification” condition is a little less black and white. A recent guidance from the USCIS dated April 7, 2011, clarified that in determining whether this requirement is met, the USCIS will look at the totality of the circumstances and compare several factors. These factors include but are not limited to the job duties of both positions, the SOC codes for the position in the I-140 petition and for the new position, and the wages associated with each position.

The SOC code pertains to the Standard Occupational Classification system used by the Department of Labor in grouping and classifying jobs and occupations. Occupations are generally categorized on the basis of type of work performed, as well as the skills, education and training required to perform the job. There are currently 840 detailed occupations under which all workers fall. These are categorized into 461 broad occupations, 97 minor groups and 23 major groups.

As an example, a physical therapist position is assigned the SOC code of 29-1123. The first two digits [29] represent the major group of healthcare practitioners and technical occupations (which group includes health technologists and technicians); the third digit [1] represents the minor group health diagnosing and treating practitioners (which includes physicians, pharmacists and dentists); the fourth and fifth digits [12] refer to the broad occupation of therapists (which includes occupational therapists and speech pathologists) ; and the last digit [3] represents the detailed occupation of physical therapists.

The USCIS has said that it will analyze the SOC codes of the two jobs without necessarily matching any particular order of digits in the two codes.

According to a 2005 USCIS Memorandum on AC21, a “substantial discrepancy” in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality, but officers are advised not to deny a case solely on the difference in wages.

Where the employee did not change employers but accepted a different position or received a promotion or demotion, the guidance states that the job duties must be sufficiently similar. The USCIS said that it will evaluate these situations on a case-by-case basis and with consideration to the totality of the circumstances.

Sometimes, both the I-140 petition and I-485 application remain pending for 180 days or more after they are concurrently filed. In such a case, the worker is not automatically entitled to portability. The USCIS must first review the I-140 petition and see if it is, or would have been, approvable, before adjudicating the I-485 application to determine if the new position is the same or similar occupational classification.

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