A. I applied for my Green Card with my employer, but now I want to change jobs. Can I look for a new employer before I get my Green Card?
Q. Perhaps. To change jobs while your Green Card application is pending (officially called your “Application to Adjust Status,” Form I-485), you need to meet three criteria.
First, your Application to Adjust Status must be pending for 180 days or longer. Second, your Application to Adjust Status must be based on the Immigrant Worker Petition, Form I-140, which your employer submitted for you. Third, the new job must be in “the same or a similar occupational classification” as your current job.
The third criterion is not easy to determine. Thankfully, USCIS recently issued a memorandum to provide guidance to determine whether two jobs are considered in “the same or similar occupational classification.”
As noted in the memorandum, you must establish by the preponderance of evidence standard (a requirement that more than 50% of the evidence points to something) that the two jobs are in the “the same or similar occupational classification.” This should be done by considering the Standard Occupational Classification (SOC) system, which is from the Department of Labor (DOL). The SOC system organizes jobs into different categories based on a six-digit number system. For example, a Web Developer has SOC number 15-1134. If your current position has the same six-digit SOC number as your new position, they are likely to be considered to be in “the same or a similar occupational classification.” Or when the first 2 or 3 numbers of the six-digit SOC numbers are the same, they may be considered to be in the “same or similar occupational classification.”
In some cases, two positions with varying combinations of six-digit SOC numbers may be considered in “the same or similar occupational categories.” Thus, you should also consider whether the job duties, experience, and education required for the positions are similar, and, if so, use that information to evaluate your situation.
If you meet all three criteria, you should be able change jobs. Due to the complexity in determining this, we encourage you to contact an employment-based immigration attorney for a professional opinion while your Application to Adjust Status is pending. It is also important to consider notifying the USCIS that you are changing employers.
Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose.(408) 453-5335