On November 20, the U.S. Citizenship and Immigration Services issued a draft of a policy memo on when a lawful non-permanent resident seeking a green card on the basis of employment can change jobs while still preserving the validity of their original petition. The draft is not final, and the public has until January 4, 2016 to weigh in on the proposed memo.
Immigrants in the U.S. who have a valid I-140 on file, which is an employer-sponsored petition for permanent residence in the U.S., can change jobs and maintain the petition with the USCIS. However, the job must be the "same or substantially similar occupation" to the position which sponsored the I-140. To determine whether a position is the same or substantially similar, the USCIS looks to the job title, job description and salary. In its memo, the USCIS also paid particular attention to the U.S. Department of Labor's occupational classification codes.
It is not always clear, however, when a position is the same or substantially similar. The USCIS is seeking to clarify to agents within the USCIS when a position is substantially similar, and therefore an applicant for an adjustment of status would not be penalized for changing jobs.
In its memo, the USCIS noted that an immigrant with an I-140 on file who changes jobs has the burden of proving his or her new job is the same or substantially similar by a "preponderance of the evidence." This essentially means that an immigrant must show that it is more likely than not that the position which he or she is moving to is substantially similar to the one for which an employer filed the original I-140.
Many immigrants can wait for some time for approval on the basis of an I-140 petition. While waiting a worker can change employers, get promoted or have a slight change in job duties. In order to preserve the I-140, the new employer must write a letter to the USCIS informing them of the immigrant's new job title and job duties.