What Is The I-485 Supplement J Form?
In December of 2017 USCIS promulgated the I-485 Supplement J form to collect the information the reviewing immigration officer would need to confirm if a change in employment circumstances will continue to support an approvable I-485 adjustment of status application (green card application) under the job portability provisions found in the Immigration and Nationality Act (INA).
What Is INA (Immigration and Nationality Act) Section 204(j)?
INA Section 204(j) in the provision of law that provides job flexibility for long delayed applicants for adjustment of status to lawful permanent residence. The law provides that an individual whose adjustment of status application has been filed and remains un-adjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was originally filed.
Are There Any Unique Case Types Under Which The Supplement J Form Would Not Apply Even If A Person’s Job Changed?
The National Interest Waiver (NIW) and Extraordinary Ability (EB-1-1) petition processes are not tied to a specific job offer with a specific employer. As such, the I-485 Supplement J form is not required for those two case types. This understanding is also confirmed on the instructions that accompany the I-485 Supplement J form. Nonetheless, persons applying under the NIW and EB-1-1 categories still must be able to provide evidence confirming that they will continue to work in their field of endeavor, which may often be similar to the types of information that would be provided in support of a Supplement J form. In summary, a person with an approved NIW or EB-1-1 petition would not be authorized to pursue an endeavor completely unrelated to the basis on which the underlying petition is approved. If the applicant is approved to conduct cancer research, it would not be appropriate for him or her to stop doing that and instead become a surfing instructor or take up some other unrelated employment.
What Are The 3 Criteria That Apply To Job Portability Under INA Section 204(j)?
For the job portability provisions to apply: 1.) the I-485 application must remain pending for 180 days or more; 2.) the new job must be same or similar to the job in the original petition; and 3.) the underlying I-140 petition must be approved.
What If The Applicant Changes Jobs Before 180 Days Has Passed?
Portability cannot be applied if USCIS adjudicates the I-485 application before 180 days. Current administrative guidance provides that a person may be able to change jobs before 180 days as long as the I-485 ultimately pends for more than 180 days and the I-140 is ultimately approved, but that is a risky strategy because there is no guarantee that those two circumstances will occur.
What If The Applicant Changes Jobs Before The I-140 Petition Has Been Approved?
As long as the I-140 petition is ultimately approved that should be okay. However, if the I-140 petition is denied, the attached I-485 application will also be denied. The applicant/beneficiary should also keep in mind that a prior employer may not wish to continue to support a pending I-140 petition or to respond to an RFE (request for additional evidence) to support a petition for a person who is no longer employed with the petitioner.
What Are SOC Codes And How Do They Relate To The Same Or Similar Requirement?
The U.S. Department of Labor (DOL) has promulgated Standard Occupational Classification (SOC) codes to categorize different jobs that may exist in the U.S. The classification is matched to the actual job duties, not internal job title, which can vary widely from company to company. The SOC code is 6 numbers long. An example would be: Software Developer; SOC Code: 15-1130. The first two digits cover the broad “major group” classification. The third digit covers the subgroup “minor group” classification. The fourth and fifth digits cover the “broad occupation,” and the sixth digit covers the “detailed occupation.” In reviewing a 204(j) portability request, the USCIS officer will review all relevant evidence to determine whether or not the new job is same or similar.
Although the extent to which the SOC code for the new job is same or similar will be considered, that factor alone should not be the determining factor. Instead, these decisions should be made on a case by case basis after reviewing all applicable evidence. Nonetheless, it should be kept in mind that the greater the difference in the first few digits of the applicable code, the more likely the degree to which the jobs are same/ similar may be questioned. The USCIS administrative memorandum can be found at: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2016/Final_Same_or_Similar_Policy_Final_Memorandum_3-18-16.pdf
Additional Information To Bear In Mind
It is always best to have help from a knowledgeable immigration attorney. Persons sometimes think that if they can figure out how to fill in the blanks on the form they can navigate the process without counsel, but they should keep in mind that every integration with the government creates a record. Beyond just filling in the form, cases often stand or fall based on the written analysis provided as well as the sufficiency of the supporting documentation. An experienced attorney may be in a better position to provide an objective review of the information submitted and point out areas of the case that may be in need of additional support. The attorney may also be able to explain the types of documentation that USCIS normally would like to see, or if such documentation is not available or applicable, may suggest alternative types of evidence that may provide additional support.
It is always better to file a well-prepared application supported by adequate documentation than to rush in submitting an inadequate self-filed application. An application that is not well presented may lead to a misunderstanding about the applicant’s qualifications and his or her continuing ability to adjust status under the applicable law, or possibly a denial.
For more information on The I-485 Supplement J Form, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (619) 677-5355 today.
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