Foreign workers in the U.S. seeking a green card through their employer may find it harder to deal with unexpected job changes under new proposed rules. Under existing rules, immigrant workers can move to another job or company in certain situations while still keeping their green card application pending. However, if the proposed regulations are adopted, they may make it more difficult for workers to meet the criteria for “porting” their visa petition to a new position or new employer.
Part of the American Competitiveness in the Twenty-First Century Act of 2000 was enacted to increase job flexibility for foreign workers in the U.S. Prior to the Act, employment-based immigration cases were taking so long that they would often result in immigrant workers’ employment status changing while waiting for a visa, requiring them to start the process anew.
For example, while waiting for a green card the employer could go out of business or would lay off the worker for financial reasons, and that would mean the worker would have to start his/her visa application all over again. To address this issue, Congress enacted section 204(j) of the Immigration and Nationality Act. This section of law created something called “porting.” Porting allows an immigrant worker with a valid employment visa petition to change jobs or employers in certain circumstances without having to restart the entire process. The purpose was to prevent workers from being penalized for getting a promotion or moving to another employer while their immigration case was unresolved due to no fault of their own. The ability to port a visa petition is something that foreign workers should be aware of. Often times this process can save a worker years of waiting, thousands of dollars, and a lot of time spent jumping through bureaucratic hoops.
The law allows eligible workers to port their approved visa petition to their new job or new employer if:
- Their Application for Adjustment of Status (Green Card Application) has remained unadjudicated for 180 days or more, and
- The new job must be in the same or similar occupational classification as the job that was the basis for the initial visa. For example, if you have been approved for an I-140 visa petition as an Italian Specialty Cook you could not port that visa petition over to a new job as an IT person.
For the past sixteen years there has been great debate as to what makes an occupation “the same or similar.” On September 20, 2015, USCIS posted a proposed rule to clarify when porting applies and how it should be used. Unfortunately, immigrant groups are concerned about how the rules propose to determine whether 2 jobs are in similar occupational classifications. The provisions state that USCIS should look to whether the jobs share essential qualities or have a “marked resemblance or likeness.” In making these determinations, USCIS may refer to the labor market expertise of the Department of Labor (DOL) as reflected in its Standard Occupational Classification (SOC) system, which is used to organize occupational data and classify workers into distinct occupational categories. The apparent reliance on the SOC system has been criticized by immigrant advocates as being too strict and as making it harder to show 2 jobs are similar allowing porting of a visa petition.
It still remains to be seen what will happen. The comment period during which individuals could voice their complaints to the proposed change closed on January 4, 2016. When the new rules are finalized, we will provide more information about its impact on foreign workers. In the meantime, if you are currently in the process of getting a green card through your employer or if you are looking to start the process, contact us for assistance.