What is Adjustment of Status (AOS)?
Adjustment of status (AOS) is the process by which individuals who are in the United States on a temporary basis through a nonimmigration visa can gain permanent residency status and receive a Green Card while staying in the United States throughout the adjustment process.
Why is job change important under EB-1, EB-2, and EB-3 visas?
Individuals are eligible to apply for permanent United States residency under the EB-1, EB-2, and EB-3 visas because of their employment. While not all EB applicants are required to have an employer to enter the United States or adjust status under the EB visa, an EB applicant must be coming to the United States for the purpose of engaging in work where the applicant has an extraordinary ability in his or her field of expertise (EB-1A), or meets certain experiential and educational requirements (EB-2 & EB-3). Thus, at minimum, an EB applicant must demonstrate that he or she is coming to the United States to engage in work. When an EB applicant changes his or her employment during the application process, the applicant must show that the new employment meets the requirements of the EB visa.
Can an applicant change jobs while adjusting status to EB-1, EB-2, or EB-3?
An applicant may change jobs while adjusting their status if the job change is to a same or similar job and the change occurs within a certain timeframe of the application process.
Step One: Is Form I-140 Approved?
In order for an applicant to change his or her job while adjusting status, Form I-140 must be approved.
When an individual applies for a Green Card under an EB visa, he or she must file Form I-140, Immigrant Petition for Alien Worker with the United States Citizenship and Immigration Services (USCIS). The applicant’s job in the United States, or employer’s sponsorship of the applicant, must be provided on this form. Proof of the applicant’s employment in the United States is part of proving the applicant’s qualifications for the EB visa.
Any job change or employer change by an applicant must be to a new job that is the same or similar to the job provided on the applicant’s Form I-140.
Step Two: Is Form I-485 Filed?
After approval of Form I-140, an applicant’s Form I-485, Application to Register Permanent Residence or Adjust Status must have been submitted to the USCIS at least 180 days ago and is still pending at the time of the job change. Note that Form I-485 can only be filed when an Immigrant Visa is available. This would depend upon the monthly Visa Bulletin as issued by the Department of State.
Step Three: Can You Port Your Job?
If an applicant’s Form I-485 is still pending after 180 days, the applicant may be able to “port” his or her new job without having to file a new Form I-140. Instead, an applicant may submit Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). An applicant may “port” his or her job by submitting Form I-485, Supplement J if the job is a same or similar occupational classification as the job listed on Form I-140.
Submitting Form I-485, Supplement J allows an applicant to change jobs without having to start the process over by filing a new Form I-140 with the new job listed on it.
Step Four: What is Your Job’s Occupational Classification?
After an applicant submits Form I-485, Supplement J, the USCIS will determine whether or not the applicant’s new job is “portable” by assessing its similarity to the applicant’s original job. The USCIS will rely on the Department of Labor’s (DOL) coded system, Standard Occupational Classification (SOC). However, the USCIS says it does more than draw numerical comparisons in the DOL’s system when determining whether or not jobs are the same or similar. Instead, the USCIS will look at several different factors.
To determine whether or not the applicant’s new job is the same or similar, the USCIS will evaluate a variety of factors, including:
- How the jobs compare in the the Department of Labor’s (DOL) Standard Occupational Classification (SOC);
- The required skills, training, education, experience, licenses or certifications for the job;
- How the wages associated with the each job compare;
- The job duties of both jobs;
- Any other relevant or credible evidence submitted by the applicant
Step Five: Respond to any Request for Evidence (RFE), if necessary.
Even when no RFE is issued by the government, the burden is on an applicant to prove by a preponderance of the evidence that the new job and the old job are the same or similar. Thus, it is important that an applicant submit credible evidence to prove that the new job and the old job are the same or similar.
The government may nonetheless issue a RFE to determine if the original offer of employment was a real, bona fide offer. The applicant may need to have his or her initial sponsor to respond to the RFE in order to prove legitimacy.
When can I change jobs while adjusting status to EB-1, EB-2, or EB-3?
An applicant may change jobs while adjusting status after his or her Form I-140 is approved and while Form I-485 is pending, if Form I-485 has been pending for at least 180 days at the time of the job change.
What are some special considerations about job change portability?
When attempting to change his or her job using portability, an applicant should take into account a few special considerations regarding job portability, including how the jobs compare; geographic change; wage change; multinational managers and executives; and self-employment.
Job Comparisons
The USCIS will refer to both the Department of Labor’s Standard Occupational Classification (SOC) code that was assigned to the applicant’s initial position in the certified labor certification application and the Dictionary of Occupational Titles (DOT). Or, when a I-140 petition is not filed on the basis of a certified labor certification application, the SOC or DOT will be used to compare the old and new positions.
Geographic Change
When an applicant is seeking an employment visa to work in the United States where there is a specific need in a certain geographic location, job portability may allow the applicant to change employment to a location where there is no specific need that the applicant would fill. This includes instances where the applicant receives labor certification on the basis of obtaining employment in a particular geographic location where there is need.
Wage Change
A wage change between the new and old position that amounts to a “substantial discrepancy” may be factored into the USCIS decision to grant or deny portability. A discrepancy is substantial when it is more than a mere difference between the wage offered in an approved labor certification or I-140 petition and the wage offered for the new job. When relevant to the applicant’s circumstances, the applicant should explain a difference in salary that is based on geographic differences and a wage based on a labor certification application that was filed years before the job change. These two factors can particularly impact wage discrepancies without indicating a meaningful difference between the two jobs.
Multinational Managers and Executives
An applicant who classifies as a multinational manager or executive under INA §203(b)(1)(C) may qualify for I-140 portability when seeking adjustment of status even if the new employing entity is not related to the entity that filed the I-140 petition. However, the USCIS may require the new position to be at a similar hierarchical level in addition to meeting the requirement for “same or similar.”
Self-Employment
Self-employment may qualify as a new job for I-140 portability if three conditions are met:
- The job in which the applicant employs herself or himself must be in the same or a similar occupational classification as the job described in the I-140 petition;
- The USCIS can confirm the legitimacy of the new self-employer and the job offer (usually through the request for evidence (RFE) process;
- The USCIS must be satisfied that the employment opportunity described in the Form I-140 was a true reflection of the petitioner’s and the beneficiary’s intention at the time the Form I-140 and adjustment of status application were filed.
