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The new AC21 rule impacts the recruitment of candidates whose current employers are already sponsoring them for permanent residence in the United States. The rule clarifies when and how a new employer can benefit from a prior employer's sponsorship and hire an employee without investing the time, money and/or risk associated with new sponsorship. The new rule:
Overview of the Process
When an employer sponsors an employee for an employment-based green card, the law requires that both parties intend for the employee to work for the employer in the sponsored job as of the date the green card is approved, and for a reasonable period of time thereafter. Assuming this requirement is met, an employee may retain his or her green card if he or she changes jobs or employers after the green card is issued. This means that a new employer does not have immigration-related obligations other than to verify the individual's employment authorization at the time of hire.
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
It is more complicated when a company wants to hire a candidate whose green card process with another employer is still pending. In such cases, prospective employers should understand what obligations, including related costs, they must undertake to employ the candidate, and, presumably, to offer him or her green card sponsorship as well.
The employment-based green card process typically culminates when the sponsored employee files, and U.S. Citizenship and Immigration Services (USCIS) approves, an application for adjustment of status to permanent residence using Form I-485 (an "adjustment of status" application).
USCIS cannot approve an adjustment-of-status application, and in many cases cannot even accept it for processing, until a U.S. employer files an I-140 Petition for Alien Worker (the "immigrant petition") and USCIS approves that petition. The immigrant petition describes the job the employer is offering to the foreign national employee and often can be filed only after the employer files, and the U.S. Department of Labor (DOL) approves, a PERM application, whereby the DOL certifies that there are no qualified U.S. workers available to fill the position.
The date the PERM application is filed with the DOL—or in cases where the law does not require a PERM application, the date the immigrant petition is filed with USCIS—becomes the foreign employee's "priority date." When the demand for green cards exceeds the supply, USCIS will issue green cards based on a foreign national's priority date.
The green card quota system is complex. In addition to the priority date, there are annual per-country limits and a preference system that generally favors those with advanced education, corporate seniority and career achievements. For natives of certain populous countries with high emigration rates to the United States, like India and China, and for employees in lower-preference categories, the sponsorship process can be exceptionally long. This means that even where USCIS has approved an immigrant petition on behalf of an employee, the employee and his or her eligible dependents might wait years before they can file applications for adjustment of status.
When a candidate is in the green card process but has not yet filed an application for adjustment of status, a new employer cannot simply take over the sponsorship process and avoid the investment in new sponsorship. However, once a prior employer's immigrant petition on behalf of a candidate has been approved, the new regulation confirms that the priority date associated with that petition, i.e., the employee's place in the queue, may move with the employee to a new employer, even if the initial sponsoring employer notifies USCIS that it wishes to withdraw the approved petition. So while the new employer may need to invest in new sponsorship, it can do so with a shorter time horizon since USCIS will treat the new case—for quota and priority date purposes—as if it was filed when the initial sponsor filed for the employee.
When a company is recruiting a candidate who has already filed an application for adjustment of status, the new regulation clarifies when the new employer can hire the candidate without the need for new sponsorship. Applications for adjustment of status in many contexts are adjudicated and approved by USCIS in a matter of months. However, due to the unpredictably of the green card quota system, many employees, especially natives of India and China, may find their adjustment-of-status applications pending for protracted periods of time. Some of these individuals may seek new employment opportunities before their green card cases are approved.
The new regulation provides that a new employer may hire a candidate in the green card process and avoid the time and expense of new sponsorship—known as "adjustment-of-status portability"—when all of the following apply:
It is this final bullet point that warrants further discussion.
'Same or Similar' Occupation Requirement
AC21, the statute passed by Congress in 1999 that created the option for adjustment-of-status portability, provides that portability requires the offered new job to be in the "same or similar occupational classification" as the job described in the immigrant petition filed by the prior employer. Congress provided no further guidance on how USCIS should compare the two jobs to determine if they are the "same or similar."
It was not until March 2016 that USCIS issued policy guidance interpreting "same or similar occupational classification," and then it was almost a year later—in January 2017—that the agency promulgated its final regulatory interpretation. The 2016 guidance is a robust, 21-page adjudicatory guide for USCIS officers and includes revisions to relevant sections of the agency's Adjudicator's Field Manual (collectively, the "2016 memo"). By contrast, the relevant provision of the final regulation is a mere two sentences: The term "same occupational classification" means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term "similar occupational classification" means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.
The new regulation also codifies the use of USCIS Form I-485, Supplement J, which the new employer and foreign national can use to notify USCIS of the new job offer and to provide information about the new job so USCIS can determine if it is sufficiently similar to the position described in the immigrant petition. The final regulation does not obligate foreign nationals, or their new employers, to proactively submit Form I-485, Supplement J, in the event of a job change, but the agency may request the form at its discretion before adjudicating an adjustment-of-status application.
According to the 2016 memo, USCIS adjudicators must make the "same or similar" determination by reviewing the totality of circumstances when comparing the new position with the position described in the immigrant petition. The memo describes a myriad of factors on which adjudicators may rely when deciding whether jobs are sufficiently similar, including job duties, required skills and experience, wages, and whether the new job reflects expected career advancement from the prior job. Importantly, however, a great deal of the memo guides adjudicators on how to review and analyze Standard Occupational Classification (SOC) system published by the DOL.
Relevance of SOC Codes
The relevance of SOC codes when comparing two jobs was addressed by USCIS in promulgating the final rule. Specifically, the commentary to the final rule reflects that USCIS intentionally removed reference to SOC codes that appeared in the proposed rule, explicitly recognizing that the SOC system may not always group jobs that are fundamentally similar into the same categories or subcategories, and thus may not always be reliable when analyzing the similarity between jobs. Nevertheless, USCIS in its commentary recognized the objectivity and potential utility of the SOC system in making job comparisons.
Form I-485, Supplement J, requires the new employer to indicate the SOC code it believes most closely matches the new job, and the form's instructions provide, "USCIS may refer to resources published by the [DOL] and its Bureau of Labor Statistics, or other relevant resources, to assist in determining whether the new offer of employment is in the same or similar occupational classification."
Given that this issue necessarily arises in the final phase of the long and critically important—to employer and employee—green card process, employers should, where feasible, include a discussion of SOC codes when submitting Form I-485, Supplement J. Among other obviously important factors such as job duties, such a discussion can help validate the similarities between the current and prior petitions. Again, however, where a comparison of SOC codes does not necessarily support a favorable comparison between jobs, there is ample support in the regulatory history that such a comparison is not required.
Once the new employer confirms that the candidate is eligible for adjustment-of-status portability, it must then examine the type of temporary employment authorization the employee currently has and determine the quickest way to bring the employee on board.
If the employee is currently working in valid H-1B status, the new employer can file its own H-1B petition and hire the employee pursuant to the "H-1B portability" provisions in the AC21 statute. These provisions have also been codified in the new regulation, which confirms that if an immigrant petition has been approved for an H-1B worker, any employer may petition to employ the individual and extend his or her H-1B status, i.e., the H-1B petitioner need not be the employer that filed the immigrant petition on behalf of the employee.
There are, however, instances where a new employer cannot or may not wish to utilize H-1B portability, e.g., the candidate holds another type of temporary work permit, the prior H-1B sponsor is a cap-exempt organization or the employer does not want to incur the costs related to H-1B sponsorship.
Importantly, all adjustment-of-status applicants may, and typically do, request temporary employment authorization documents (EAD cards) when they file their adjustment-of-status applications. USCIS usually issues these cards within 90 days of filing. They are typically valid for one year and can be renewed while the adjustment-of-status application is pending.
When recruiting a candidate who is eligible for adjustment-of-status portability, the new employer should ask if the candidate has an EAD card and when it expires. In the past, when an EAD card was close to its expiration date and the employee did not apply for an extension of the card at least 90 days before it expired, there was a risk the candidate would face a gap in work authorization and a delayed transition to the new employment. Now, as long as the employee files an application for a new EAD card any time before the prior card expires, the law will deem the prior card automatically extended for 180 days. This is ample time for the agency to issue a new card and ensures a seamless move for the employee and his or her new employer.
The new AC21 regulation should assist employers and their prospective foreign national employees in making important decisions regarding the timing of job transitions. The regulation also will help employers more confidently estimate the investment required when recruiting candidates with pending permanent residence applications.
Andrew Greenfield is the managing partner of the Washington, D.C., office of global immigration law firm Fragomen.
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