AC21 Section 106(C) Occupational Classifications

Section 106(c) of AC21 states that “. . . . an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated 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 filed.

This section allows alien workers to change or port the offer of employment on which their adjustment of status application is based from one job to another job as long as both jobs are in the same or similar occupational classification. For an alien worker to change the offer of employment, his or her adjustment of status application must have been pending with USCIS for 180 days or more.

What is an “occupational classification”?

The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of the SOC system is to classify workers into occupational categories to organize occupational data. The SOC system covers all occupations where work is performed for pay or for profit. Occupations are categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job. The SOC system is organized using codes, which generally consist of six numerical digits.

How does USCIS determine what qualifies as a same or similar occupational classification?

USCIS generally makes a determination as to whether one job is in the “same or similar” occupational classification as another by referring to the DOL’s SOC (Standard Occupational Classification) system. USCIS officers also consider multiple factors to conclude if two jobs are considered to be in similar occupational classifications for porting purposes. USCIS officers may compare factors including, but not limited to:

  • The job duties of both positions
  • The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position
  • The wages associated with each position

USCIS officers view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.

Does USCIS only use the first two or the first three numbers of the SOC code to determine if two occupational classifications are same or similar?

USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer.

When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. However, there is no hard and fast rule for matching any particular order of digits in two SOC codes.

Can I accept a different position or receive a promotion from my employer and remain eligible to adjust my status to permanent residence?

USCIS evaluates the situations on a case-by-case basis. The job duties for each position, the SOC codes for each position, and any differences in the wages will be the determining factors as to whether you remain eligible. Regardless of whether the new job is considered a demotion, a lateral move or a promotion within the company for which the beneficiary is employed, the job duties must be sufficiently similar. USCIS officers will view the totality of the circumstances in light of the congressional intent, expressed in INA section 204(j), as enacted by 106(c) of AC21, to facilitate job mobility within the same or similar occupational classification for qualifying aliens with long-pending adjustment applications.

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