Council for Global Immigration quoted in article – “Guidance Given on Job Changes for Foreign Workers”

3/31/2016

SHRM, 03/25/2016 –

"The use of the Department of Labor's Standard Occupational Classification (SOC) codes will be an important—but not the only—factor in deciding whether foreign workers approved for green cards can change jobs, according to the final version of a new policy guidance.

"U.S. Citizenship and Immigration Services (USCIS) issued the guidance March 18 to provide immigration officers more clarity on how to determine if two jobs are in a 'same or similar' job category, with regards to immigrant workers seeking to change jobs.

"The policy is effective for all pending or filed determinations with USCIS on or after March 21, 2016.

"'Time will tell whether the new guidance is helpful or not,' said Justin Storch, manager of agency liaison for the Council for Global Immigration (CFGI)…'The guidance gives adjudicators a framework they didn't have before, but the key question is how the framework will be used.'

"While USCIS makes it a point in the policy to stress that a review of SOC codes will not be the only factor in a determination that also includes an individualized assessment of the circumstances, employers should conduct their own evaluation before hiring these workers lest they should get on the hook for starting a new permanent residency process for them.

"…Workers with approved green card petitions…can switch jobs in some cases, but only if the new job is in a same or a similar classification as the one listed in the petition if they want to keep their status valid.

"The policy is designed to reduce uncertainty which, according to USCIS, 'may deter many foreign workers from changing employers, seeking new job opportunities or even accepting promotions for fear that such action might invalidate their currently approved immigrant visa petitions.'

"…To establish that a new position is in the same or a similar occupational classification as the offer of employment for which the green card was approved, applicants are asked to submit evidence on the job duties and wages offered, as well as the skills, experience, education, training, licenses and certifications needed, for each job.

"…Immigration officers will also be referring to the SOC code system, which organizes occupational data and classifies workers into 840 distinct occupational categories.

"…But the SOC code system is updated only once every eight years, 'a schedule that cannot and does not keep pace with the speed of innovation and the evolution of occupations in the U.S. economy,' according to comments submitted to USCIS by CFGI. Last updated in 2010, it's not due for another revision until 2018.

"'Just one year after the 2010 update to the SOC system, the Office of Management and Budget recognized that the system did not adequately define STEM [science, technology, engineering and mathematics] occupations,' CFGI said.

"In addition to lagging behind real-time job changes, experts cautioned that not all classifications make sense. Sometimes two jobs are described within the same broad SOC code, but are not similar. In other cases, 'occupations which, in practice, have similar duties and rely on similar skills, experience and education are often classified in disparate major groups within the SOC code structure,' CFGI said. 'A rigid reliance on these assigned codes would often lead to an incorrect conclusion in the portability analysis.'

"…In another example, officers 'relying on SOC codes could easily reach the incorrect conclusion that Business Intelligence Analyst is dissimilar to Accountants and Auditors, despite their clear essential similarities,' because they stem from different group classifications, according to CFGI.

"Inconsistencies in the SOC structure are particularly pronounced for educational, nonprofit and research organizations, CFGI added."

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