PORTING AN I-485 TO A NEW EMPLOYER

Last year the USCIS issued new guidance regarding when a foreign national can port his/her I-485.  Under the American Competitiveness in the Twenty-First Century Act (AC21) a foreign national can change his/her employer or job during the green card process once the I-485 has been pending for 180 day or more.

When changing positions, the green card applicant and their new employer, must file a form I-485(j) with the USCIS confirming the new employer is taking over the green card case, agrees to pay the prevailing wage, and that the new position is the same or similar to the position described in the green card application.

The USCIS will consider the totality of the circumstances when determining if the green card job and the new job are the same or similar.  Specifically, 2016 memo describes how Immigration Officers can review the occupation codes assigned to both jobs by the Department of Labor when determining if the two jobs are the same or similar.

Evidence that the positions are the same or similar can include:

• ·         The job duties of both positions;
• ·         The skills, expertise, education, training, licenses or certifications specifically required to perform each job;
• ·         The wages offered for each job; and
• ·         Any other material and credible evidence relevant to the determination.

Green card applicants can also port their I-485s when, in their new position, they are primarily responsible for managing the same or similar function of their original job.  For example, if a PT is promoted to Senior PT and supervises other PTs and PTAs.  It is also acceptable for the applicant to manage workers in a different occupation if the change in position is a normal career progression.  For instance, if an OT is promoted to Rehab Manager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs, and others.