Guidance Given on Job Changes for Foreign Workers

Department of Labor codes to determine job portability

By Roy Maurer Mar 25, 2016
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The use of the Department of Labor’s Standard Occupational Classification (SOC) codes will be an important—but not the only—factor in deciding whether foreign workers approved for green cards can change jobs, according to the final version of a new policy guidance.

U.S. Citizenship and Immigration Services (USCIS) issued the guidance March 18 to provide immigration officers more clarity on how to determine if two jobs are in a “same or similar” job category, with regards to immigrant workers seeking to change jobs.

The policy is effective for all pending or filed determinations with USCIS on or after March 21, 2016.

“Time will tell whether the new guidance is helpful or not,” said Justin Storch, manager of agency liaison for the Council for Global Immigration (CFGI), based in the Washington, D.C., area. “The guidance gives adjudicators a framework they didn’t have before, but the key question is how the framework will be used.”

While USCIS makes it a point in the policy to stress that a review of SOC codes will not be the only factor in a determination that also includes an individualized assessment of the circumstances, employers should conduct their own evaluation before hiring these workers lest they should get on the hook for starting a new permanent residency process for them.

“It is no longer business as usual for job changes,” said Amy Peck, an immigration attorney in the Omaha, Neb., office of Jackson Lewis. “An employee and the new employer are advised to consider a variety of strategies that will be fact-specific with the goal of sustaining the pending permanent residency process. Evaluating all of the facts and circumstances which include the same or similar analysis will be critical to protecting the interests of all involved.”

21st Century Solution

Workers with approved green card petitions, known as Form I-140s, can switch jobs in some cases, but only if the new job is in a same or a similar classification as the one listed in the petition if they want to keep their status valid.

The policy is designed to reduce uncertainty which, according to USCIS, “may deter many foreign workers from changing employers, seeking new job opportunities or even accepting promotions for fear that such action might invalidate their currently approved immigrant visa petitions.”

Annual per-country visa caps along with overall caps on employment-based visas limit foreign workers’ access to green cards, even after they have been approved. Workers and their advocates have voiced concerns over the years that if they change jobs while awaiting a green card, their visa petition may no longer be valid and they’ll lose their place in the green card line.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) was intended to address this problem by allowing a foreign worker already approved for permanent residency to change jobs while waiting for a green cards as long as:

  • The individual filed an I-485 application to adjust to lawful permanent resident status.
  • No decisions have been made regarding the petition in the past 180 days.
  • The job to which the individual worker wants to switch to is in the same or similar occupational classification as the job for which the original visa petition was filed.

Changing jobs can apply to making a lateral move, accepting a promotion or switching to self-employment, according to USCIS.

To establish that a new position is in the same or a similar occupational classification as the offer of employment for which the green card was approved, applicants are asked to submit evidence on the job duties and wages offered, as well as the skills, experience, education, training, licenses and certifications needed, for each job.

Reliance on the SOC System Concerns Some

Immigration officers will also be referring to the SOC code system, which organizes occupational data and classifies workers into 840 distinct occupational categories.

The system is organized using numeric codes that generally consist of six digits. Each digit or group of digits represents the level of similarity of positions. For example, the SOC code for the detailed occupational classification of “web developer” is 15-1134 and is broken down as follows:

  • The first two digits (15) indicate the job belongs within a group classification which includes all computer and mathematical occupations.
  • The third digit (1) indicates the subgroup classification, which includes all computer occupations.
  • The fourth and fifth digits (13) indicate the broad occupation classification, which includes software developers and programmers.
  • Finally, the sixth digit (4) indicates the detailed occupation classification, which in this case is for web developers.

But the SOC code system is updated only once every eight years, “a schedule that cannot and does not keep pace with the speed of innovation and the evolution of occupations in the U.S. economy,” according to comments submitted to USCIS by CFGI. Last updated in 2010, it’s not due for another revision until 2018.

“Just one year after the 2010 update to the SOC system, the Office of Management and Budget recognized that the system did not adequately define STEM [science, technology, engineering and mathematics] occupations,” CFGI said.

In addition to lagging behind real-time job changes, experts cautioned that not all classifications make sense. Sometimes two jobs are described within the same broad SOC code, but are not similar. In other cases, “occupations which, in practice, have similar duties and rely on similar skills, experience and education are often classified in disparate major groups within the SOC code structure,” CFGI said. “A rigid reliance on these assigned codes would often lead to an incorrect conclusion in the portability analysis.”

For example, political scientist and geographer are both found within the broad occupational code for miscellaneous social scientist, but these occupations are very different and would not support portability, Peck said.

In another example, officers “relying on SOC codes could easily reach the incorrect conclusion that Business Intelligence Analyst is dissimilar to Accountants and Auditors, despite their clear essential similarities,” because they stem from different group classifications, according to CFGI.

Inconsistencies in the SOC structure are particularly pronounced for educational, nonprofit and research organizations, CFGI added.

“It remains to be seen how heavily USCIS weights an exact match of SOC codes in determining whether a job is same or similar,” Peck said. “A narrow interpretation of the policy could change adjudications from mostly favorable to denials, as we have seen in other types of cases.”

Roy Maurer is an online editor/manager for SHRM.

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