This particular section of the Immigration law allows applicants or foreign nationals, to change or ‘port’ the offer of employment on which their adjustment of status application is based from one job to another. This is possible, when the job you were previously doing and the one you are about to change to, both belong to the same category or can be considered in the same occupational classification. It must be understood that the term “port” or “porting” here means to change the offer of employment from one job to another job in a way that allows an applicant to remain eligible to adjust status without having to file a new I-140 immigrant petition. For an alien to change the offer of employment, his or her adjustment of status application, Form I-485, must have been pending with USCIS for 180 days or more.
Questions and Answers
Q1. What is an “occupational classification”?
A1. The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify different jobs and the occupational groups that they fall into. The purpose of the SOC system is to classify foreign workers into job categories so that the data that is related to different occupations is better managed. As such, the SOC system covers all occupations where work is performed for pay or for profit. Occupations are categorized based on the type of work that is performed here. Additionally, There are certain other jobs that are also classified based on the skills, education and training required, in order to perform the job.
The SOC system is organized by use of codes, to indicate specific employment sections, which generally consist of six numerical digits. For example, the SOC code for a stonemason is 47-2022. Let us see a part by part deconstruction of what each part of the code means-
In this example- the SOC code indicating the occupation of a stonemason is 47-2022
In the number -2022: The first two digits, “47” represents the major group, which includes all construction and extraction occupations.
Similarly, the third digit, in 47-022: “2” represents the minor group, which includes all construction trade workers.
Again the fourth and fifth digits, of 47-22: “02” represent the broad occupation, which includes brickmasons, blockmasons, and stonemasons.
The sixth digit, in 47-202: “2” represents the detailed occupation, which only includes stonemasons.
In the same way, here are some other examples-
47-0000 Construction and Extraction Occupations
47-2000 Construction Trades Workers
47-2020 Brickmasons, Blockmasons, and Stonemasons
Every occupation is assigned only one category at the lowest level of the classification (sixth digit). A USCIS memo titled- Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (December 27, 2005 AC21 Memo) instructs USCIS officers to consider the Dictionary of Occupational Titles (DOT) code as part of the same or similar occupational classification analysis. The DOT has been replaced by the Occupational Information Network (O*NET) under the sponsorship of DOL’s Employment and Training Administration (ETA). The O*NET system relies upon the SOC codes.
Q2. How does USCIS determine what qualifies as a same or similar occupational classification?
A2. USCIS generally makes a determination as to whether one job is in the “same or similar” occupational classification as another by referring to the DOL’s SOC system. USCIS officers also consider multiple factors to come to a conclusion, on whether the two jobs are considered to be in similar occupational classifications for porting purposes (see above question for definition of “porting”). USCIS officers may compare factors including, but not limited to:
The duties of the person in both the jobs
The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position
The income from both the jobs, which preferably should be more or less in the same bracket.
USCIS officers will view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.
Q3. Does USCIS only use the first two or the first three numbers of the SOC code to determine if two occupational classifications are same or similar?
A3. As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer.
When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. However, there is no hard and fast rule for matching any particular order of digits in two SOC codes.
In the example in Q.1, the “47” includes all types of construction and extraction occupations, which is a big category and may not be able to conclude whether two jobs are similar. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar.
For example, the SOC code for a stonemason is 47-2022. The job description for a stonemason is:
‘Build stone structures, such as piers, walls, and abutments. Lay walks, curbstones, or special types of masonry for vats, tanks, and floors.’
The SOC code for a boilermaker is 47-2010, which contains the same first four numbers of the stonemason’s SOC code (47-20). However, the job description for a boilermaker is significantly different from that of stonemason:
Construct, assemble, maintain, and repair stationary steam boilers and boiler house auxiliaries. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints. Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Assist in testing assembled vessels. Direct cleaning of boilers and boiler furnaces. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines.
Q4. The December 27, 2005 AC21 Memo says that the difference between the wages of two jobs can be used to decide if the two positions are the ‘same or similar’. But the memo also makes it clear that a difference in the wages of the two jobs cannot be used as the sole basis for denial in adjustment of status portability cases. As such can the USCIS provide further explanation on how wages are used to determine whether two jobs are in the same or similar occupational classification?
A4. Section I, Question 3 from the December 27, 2005 AC21 Memo gives the USCIS officers the flexibility of considering a “substantial discrepancy” in the wages offered in two positions, in order to assist them in deciding whether the two jobs are in the same or a similar occupational classification. A “substantial discrepancy”, (something that any officer cannot afford to overlook) in the wages of the two jobs may then be a contributing factor in a denial, keeping in mind other factors too, proving that the decision is to be one that should be based keeping in mind the totality of the situation and specific case. It specifically mentions that a USCIS officer should not deny a case just because the second position pays more or less than the original.
Section 1, Question 5 from the December 27, 2005 AC21 Memo mentions a “difference” in the wages to inform both USCIS officers and the public that a difference in wages should not be used as the only basis for which a denial is issued to a person. This means there can be an allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations.
Q5. Under the circumstances, can I accept a different position or receive a promotion from my employer and remain eligible to adjust my status to permanent residence?
A5. Depending on the situation and a particular case, the USCIS will evaluate the situation. The job duties for each position, the SOC codes for each position, and any differences in the wages will be the determining factors as to whether you remain eligible. Regardless of whether the new job is considered a demotion, a lateral move or a promotion within the company for which the beneficiary is employed, the job duties must be sufficiently similar. USCIS officers will view the totality of the circumstances in light of the congressional intent, expressed in INA section 204(j), as enacted by 106(c) of AC21, to facilitate job mobility within the same or similar occupational classification for qualifying aliens with long-pending adjustment applications.