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What is portability?

Portability is essentially when an employee who has a pending green card application can move from one employer to another and “port” or take her or his/her green card application to the new job. If “portability” does not apply, the employee will likely lose his/her green card application when he or she changes jobs and will have to start the entire process over, if such an option is available.

What is the “same or similar” standard and when does it apply?

Workers who have filed green card applications that have been pending for at least 180 days are eligible to change employers or positions and “port” (or take with them) their green card application if the new job is deemed to be “same or a similar.” Before USCIS issued the new policy memo on March 18, 2016, there was insufficient guidance on what “same or similar” meant, leaving employees with uncertainty as they changed jobs. The memo clarified what it means to move to a “same or similar” position with the goal of providing more flexibility and stability for foreign workers and their employers.

In particular, the March 18, 2016 memo clarified that “same or similar” includes analysis of:

  1. The occupation classification codes for the original and new positions;
  2. The job duties of the original and new positions;
  3. The education and experience required to perform the original and new positions; and
  4. The wages offered for the original and new positions.

The memo also clarifies that “a change to the same or similar occupational classification may involve lateral movement, career progression, or porting to self-employment either in the same or different geographic location.” The memo clarifies that although each of these things can be considered, USCIS should consider a totality of the circumstances, including the passage of time and transitions to related jobs within a given field of endeavor.