On December 31, 2015, the Department of Homeland Security (DHS) issued a proposed rule that would implement changes to several non-immigrant visa programs and immigrant visa (green card) programs. According to the DHS, these proposed changes would (1) improve the process for employer sponsorship of visas and green cards, (2) provide greater stability and job flexibility for immigrant and nonimmigrant workers, and (3) increase transparency and consistency in the application decision-making process.
The proposals are quite lengthy so I offer a brief summary of some of them in separate posts. In this post, I address the proposed procedures to allow applicants to change jobs or employers while waiting for green card approval.
Under current law, if an individual has an employment- based (EB-1B or EB-1C, EB-2, or EB-3) adjustment of status (I-485) application for permanent residence that has been pending for 180 days or more, he can change jobs or employers in the same or similar occupation as the original job approved in the visa petition (I-140). In this instance, a new I-140 is not required. This is typically called “portability.” The proposed rule clarifies the procedures for portability as follows:
-The new employment or job offer may be from the original petitioning employer (e.g. promotion to supervisor or different job location), from a different U.S. employer, or self-employment.
-The individual and employer must intend that the individual will be employed once the green card is approved.
-The I-140 petition approval must not be revoked due to fraud, material misrepresentation, invalidation or revocation of the labor certification, or USCIS error.
-If an I-140 has been approved for 180 days or more, it will remain valid for portability and 7th year extensions of H-1B status even if the employer withdraws the I-140 or the employer goes out of business.
-The job must be in the same or similar occupation. Same occupation is one that resembles in every relevant respect the original occupation in the I-140 petition. The USCIS will consider job duties, skills, experience, education, training, licenses, and other factors to determine whether the new job is in the same occupation. For the similar occupation definition, the USCIS refers to the dictionary definition of similar, i.e. shares essential qualities or has a marked resemblance or likeness with the original occupation in the I-140.
-A new form must be completed by the individual applicant and employer that will provide an explanation of the new employment offer.
If an individual changes jobs or employer and the I-485 has not been filed or has not been pending more than 180 days, the portability rule does not apply and a new I-140 petition must be filed before the I-485 application can be filed or approved.
Keep in mind that these rules are not effective. Until February 29, 2016, the public has an opportunity to comment and suggest changes to the proposals. I encourage you to do so at http://www.regulations.gov or by email at [email protected] (include DHS Docket No. USCIS-2015-0008 in the subject line). After the public comment period is closed, the government will review the comments and issue its final rule, which may be a year or so later. At that point, applicants must comply with rules for approval of their applications and petitions.
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