Last year the USCIS issued newguidance regarding when a foreign national can port his/her I-485. Under the American Competitiveness in theTwenty-First Century Act (AC21) a foreign national can change his/her employeror job during the green card process once the I-485 has been pending for 180day or more.
When changing positions, the greencard applicant and their new employer, must file a form I-485(j) with the USCISconfirming the new employer is taking over the green card case, agrees to paythe prevailing wage, and that the new position is the same or similar to theposition described in the green card application.
The USCIS will consider thetotality of the circumstances when determining if the green card job and thenew job are the same or similar. Specifically,2016 memo describes how Immigration Officers can review the occupation codesassigned to both jobs by the Department of Labor when determining if the twojobs are the same or similar.
Evidence that the positions are thesame 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 evidencerelevant to the determination.
Green card applicants can also porttheir I-485s when, in their new position, they are primarily responsible formanaging the same or similar function of their original job. For example, if a PT is promoted to Senior PTand supervises other PTs and PTAs. It isalso acceptable for the applicant to manage workers in a different occupationif the change in position is a normal career progression. For instance, if an OT is promoted to RehabManager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs,and others.