Job Portability for Green Card Applicants and How Employers Can Benefit
The employment-based immigration process is lengthy, and many foreign nationals seeking a green card based on employer sponsorship will wait several years for approval due to processing delays and backlogs created by the visa quota system. Additionally, the employer-sponsored green card process is specific to the sponsoring employer and position, so for many foreign nationals stuck in the backlog, a job change means starting that process over from scratch. That can be costly and time-consuming for an employer and can add significant time to the foreign national employee’s overall green card wait. There are, however, limited circumstances where an employer could avoid the need to initiate green card sponsorship again despite a change in jobs.
The Immigration and Nationality Act includes specific provisions addressing job portability, which were created in 2000 in an effort to provide more job flexibility to foreign nationals affected by the green card processing delays. Before these changes were implemented, foreign national employees were unable to change jobs within the company or to move to new jobs with new employers without jeopardizing their green card process. This was extremely burdensome to employers and foreign national employees alike. Pursuant to the 2000 amendments, however, a foreign national employee is afforded the opportunity to change positions and/or employers without affecting the pending green card cases if the I-485 green card application has been pending for at least 180 days and the new job is in the same or similar occupational classification as the job which initially served as the basis for green card eligibility.
While the 180-day requirement is very objective and easily confirmed, the “same or similar occupational classification” requirement requires more analysis and consideration. U.S. Citizenship and Immigration Services (USCIS) recently released new policy guidance to further clarify the factors that it will consider in determining a foreign national’s eligibility to change positions without affecting the pending green card process. In this March 2016 policy memorandum, USCIS confirms that the list of applicable factors is non-exhaustive, but does include consideration of the Standard Occupational Classification Code assigned by the U.S. Department of Labor, the actual duties for each job, the requirements for each job (including education, experience, certifications, licensing, etc.), and the wages offered for each job. Regardless of the factors used, the foreign national employee must establish that the positions are in the same or similar occupational classification by a preponderance of the evidence.
Employers who hire foreign national candidates should understand sponsorship needs and options before making hiring decisions, and candidates who qualify under these portability provisions offer an obvious sponsorship advantage to employers. While ultimate green card approval for these candidates could still be years away, the employer can employ them now and avoid the time and expense of pursuing a new labor market test and other related filings associated with the usual employment-based green card sponsorship process so long as the portability requirements are met. Despite the significant cost savings associated with this portability option, employers must still ensure its foreign national employees have appropriate temporary work authorization to continue employment while a green card application remains pending. Employers should work with qualified immigration counsel to evaluate portability eligibility and ensure all other visa requirements are met.
Please contact Christl P. Glier
or another member of Ice Miller’s Immigration Group
with questions regarding portability requirements or other immigration sponsorship considerations.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.