U.S. Citizenship and Immigration Services (USCIS) published a draft policy memo to help clarify wording in the requirements for H-1B Person in Specialty Occupation and other work visa transfers. Many foreign nationals waiting for employment-based green cards share the concern that a job change would cause them to lose their spot in the green card queue or invalidate their current visa status. According to USCIS, that concern often stems from misinformation about what USCIS considers a “same” or “similar” job, which is one of the requirements for a transfer.
Right now, the set of rules governing job changes say that foreign nationals who’ve already been approved for permanent residency and are waiting to receive their green cards may transfer jobs if:
- They filed an I-485 Application to Register Permanent Residence or Adjust Status.
- No decisions have been made regarding the petition in the past 180 days.
- The job to which an 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.
To help clarify whether jobs are considered the “same” or “similar,” the memo clarifies:
- “Same” means that the jobs are “identical,” “resembling in every relevant respect,” or in “the same kind of category or thing.”
- “Similar” means the jobs share essential qualities or have a “marked resemblance or likeness.”
Many foreign nationals waiting for employment-based green cards share the concern that a job change would cause them to lose their spot in the green card queue or invalidate their current visa status.
Occupations, classified by numbers
The draft policy also instructs USCIS adjudicators to use the Department of Labor’s Standard Occupational Classification (SOC) codes, which define job types. The codes group workers into 840 occupations based on what work is performed and which skills, education and training are required. Each occupation carries a six-digit code, with each digit providing a job category classification.
An article from the Society for Human Resource Management (SHRM) uses the job of web developer as an 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.
For convincing USCIS of sameness, the job codes must match; for similarity, the codes must share the same broad occupation code (the fourth and fifth digits).”
While the new code-based classification system could be considered overly rigid, USICS hopes that it will help foreign national workers feel more comfortable switching jobs during what is often a long waiting period for green cards. However, since the policy is only a draft, the points outlined may change. Any comments on the draft must be submitted by January 4, 2016, and the policy is set to be implemented by March 21. Stay tuned for more information on this memo – and subscribe to our blog for the latest updates on this and other policy changes.
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