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Joel Stewart on PERM Labor Certification

Porting with PERM

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It is commonly known that H-1B temporary workers can port to new employment, even while a new H-1B petition is pending approval. Each porting event requires a new petition, and each petition requires ​de novo approval. The only credit given for porting is the ability to work in the new position while waiting for official approval from USCIS.

According to a March 16 Policy Memorandum from CIS, section 204j of the INA allows employment-based applicants seeking permanent residency status to port to new employment with a the same or new employer, when they are in the adjustment of status (AOS) for 180 days or more – provided that the new job is the same or similar. Qualified applicants with underlying PERM cases can port as often as they want and extend their stay as long as necessary, even if their priority dates retrogress.

After years of uncertainty around what qualifies as the 'same' or 'similar,' US Citizenship and Immigration Services (USCIS) has issued a memo that provides definitions and interpretive guidance.

Definitions

Because the terms 'same' or 'similar' are not defined in the Immigration and Nationality Act, the CIS Regulations, or the PERM Rule, CIS has employed dictionary definitions. 'Same' means "identical" or "resembling in every relevant respect", and 'similar' means sharing "essential qualities" or a "marked resemblance or likeness".

Further meaning of these terms can be found in the Standard Occupational Classifications on the O*Net – a government databank that organises all occupations in the United States into 23 major groups, 97 minor groups, 461 broad occupations and 840 detailed descriptions.

Information technology positions

Of interest to the information technology (IT) community is the fact that many IT positions meet the same or similar test for porting because they belong to one major group: Computer and Mathematical Occupations (15-0000).

The Department of Labour gives several examples of occupations in this group that meet the same or similar test:


  • Computer Programmer (15-1131);
  • Software Developer, Applications (15-1132);
  • Software Developer, Systems Software (15-1153); and
  • Web Developer (15-1154).


Jobs with same classification code not automatically the same or similar

Jobs with the same broad classification code are not automatically considered to be the same or similar. Differences may prevent favorable classification when the duties of the jobs are dissimilar (eg, if one is primarily technical and the other is primarily supervisory). Other distinctions – such as normal career progression, increased responsibility, salary changes and special skill levels – may be permitted.

Jobs with different classification codes can be the same or similar

Conversely, jobs that have different broad classification codes can be the same or similar when the job duties are similar, or when differences in classification depend on the size or nature of the employer. For example, the Department of Labour has stated that Computer and Mathematical Occupations (15-0000) can provide possible matches for jobs in Architecture and Engineering Occupations (17-0000).

Approval of AOS

Another important requirement for porting is that an AOS application cannot be approved if the underlying I-140 petition has been denied, which can lead to unexpected problems. The memo states that it is unlikely that an employer would continue to pursue the approval of an I-140 petition for a worker who ported to work elsewhere before it was approved.

Workers whose I-140 petitions have already been approved should be prepared to prove the validity of the new job, including the legal status of the new employer, the existence of a genuine job offer and the ability of the new employer to pay the wages.

No reporting requirement

Employers who sponsor workers for H-1B visas must report that workers have ported or departed from the country. However, the reporting rule does not extend to PERM and other employment based AOS applicants on whose behalf an I-140 immigrant petition has been filed.

While some workers may choose to report their new employment to USCIS voluntarily, others may simply keep the documentation as proof that they ported in accordance with the laws and policy guidelines.

Evidentiary Standards

Decisions by officers should be based on the preponderance of the evidence and the totality of circumstances.

Career Progression

The memo support career progression, including upgrades in job duties and supervisory duties, as well as situations when an individual moves from a non-managerial and non-supervisory position into a managerial or supervisory role. "If evidence provided by applicants establishes that, in their new positions, they are primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions, ISOs may treat such evidence favorably in determining whether the two jobs are in similar occupational classifications.

Salary Increments

The memo states, "...a difference in salaries alone would not preclude an ISO from finding that two positions are similar. Allowances should be made for normal raises that occur through the passage of time to account for inflation or promotion. There can also be an allowance for a difference in pay25 if such difference is related to varying rates of pay in different economic sectors or geographic locations, or is the result of other factors such as corporate mergers, size of employer, or differences in compensation structure. Additionally, there could be differences in wages in cases involving moves from for-profit employers to nonprofit employers, academic institutions, or public employers (or vice versa). USCIS will be able to perform its adjudicatory function most effectively if an applicant explains in detail any substantial discrepancy in wages between the original position and the new position. In all instances a difference in wages and any explanation for that difference shall be reviewed along with all other evidence presented."

Adjudicator's Field Manual

The Policy Memorandum has been incorporated into the AFM along with a disclaimer: "This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner."

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Updated 03-20-2016 at 11:02 AM by JStewart

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