Is Job Title Material?
Is job title important in immigration matters?
As always, any information provided to the government must be honest, accurate, truthful, and correct to the best of one’s knowledge and belief. In addition, it is important to keep in mind that applicable laws and regulations may define jobs in ways that result in the job being labeled in a way that may or may not be an exact match with the in-house job title an employer may assign to the same kinds of specific job duties for the position. This means that a government classification system, such as the O*Net/ OES system, may assign a plain language title that differs from an employer’s in-house title. Sometimes parts of the government’s plain language title and the employer’s in-house title may overlap. Differences in wording can also be accommodated by including the in-house title in parenthesis, or alternatively listing the in-house title with the government plain language title following in parenthesis to make clear that both labels apply to the same substantive job duties.
Is there any specific guidance applying these principals to H-1B professionals?
Administrative case law decisions confirm that “[USCIS] does not simply rely on a position’s title. The specific duties of the proffered position, combined with the nature of the petition entity’s business operations, are factors to be considered.” Matter of [name not provided], WAC-07-137-52988 (AAO June 3, 2008). The USCIS Adjudicator’s Field Manual goes even further in explaining that: “it is important to note that occupations are rapidly evolving and job titles themselves are often meaningless.” AFM 31.3(g). In summary, it is important to focus on the actual job duties, not the job title, while also keeping in mind that tying into the applicable plain language title, at least in part, can be helpful to the reviewing officer in confirming which job classification the employer believes to be the closest match to the actual job duties for the position in which the foreign worker will be employed.
When is an amended H-1B petition required?
It is not usual for employees to obtain small incremental promotions during the 3 year term that most H-1B petitions are valid. These kinds of minor immaterial changes are normally updated with USCIS at the time the next extension petition is filed. See, USCIS Memo by Michael Pearson, “Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (PL 106-313), and Related Legislation (PL 106-311), and (PL 106-396),” January 19, 2001. Minor title changes are often not material. Nonetheless, and depending on the extent of the change, changes in the physical worksite or large changes in the nature of the actual job duties performed often are material and require that an amended petition be filed with USCIS.
Do the PERM and H-1B titles and job duties need to match?
Lawful Permanent Residence (LPR) petitions, and the underlying DOL PERM application on Form ETA-9089, relate to proposed future employment. H-1B employment relates to the job as it is right now. The terms and conditions of the proposed PERM employment apply at time the sponsored foreign worker becomes a Lawful Permanent Resident (green card holder). The LPR employment may or may not be the same as the current employment supported by H-1B status or another temporary non-immigrant work visa. This means that the H-1B and PERM titles may differ depending on the nature of the present employment and anticipated changes that may apply to the proposed future employment. It is also important to note that different laws and regulations apply to the H-1B and PERM processes. Only “specialty occupations” qualify for H-1B status. 8 CFR § 214.2(h)(4)(ii). The H-1B regulations serve as a floor beneath which an H-1B petition will not be approved. The PERM regulations serve to define jobs in a way that limits what may be required. Under the PERM rules, the job requirements “must be those normally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation shown in the O*Net Job Zones. 20 CFR § 656.17(h)(1). This acts as a ceiling beyond which a case will be denied absent a showing of business necessity for requirements that the DOL views to be abnormally high. It is common for PERM applications to defer to a government plain language title given the close connection between the PERM process and the DOL’s O*Net classification system.
When is a new PERM application required?
Changes in the physical worksite or large changes in the nature of the actual job duties often are material may require a new PERM labor certification application to support future LPR status. Small internal job title changes where the substantive job duties remain mostly the same, and the physical worksite and employer remain the same normally would not require a new PERM application.
How does the AC-21 law affect changes that may occur after an employee reaches the last steps of the green card process?
The AC-21 law, found at INA § 204(j), provides that employment based immigrant petitions remain valid to support a move to same or similar employment, even with another employer, when the I-140 petition is approved, the I-485 green card application has been pending for at least 180 days, and the employee moves to a same or similar position. USCIS has released an administrative guidance memo noting that USCIS will often compare the O*Net/ SOC codes that apply to the original position and new position to determine whether or not the jobs are sufficiently same or similar. Additional information can be found on the Supplement J form and related guidance found on the USCIS website.
Do these same principles regarding title apply to L-1 managers?
USCIS administrative guidance notes that “neither the title of a position nor ownership of the business are, by themselves, indicators of managerial or executive capacity. AFM 32.6(d). Instead, consistent with the principles outlined above, USCIS focuses on what the visa holder actually does on a day-to-day basis, noting the extent to which the position involves hands-on performance in contrast to management of business operations. Again, the focus is on the actual job duties and not title.
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