United States: New Developments In Immigration Law Concerning The Visa Waiver Program, Global Entry, And Changing Jobs During The Permanent Residence Process

1. U.S. Tightens Eligibility for Visa Waiver Program

In the wake of the terror attacks in Paris, the White House announced immediate changes to the Visa Waiver Program (VWP), which permits visa-free travel to the U.S. for citizens of 38 program partner countries around the world. Most notably, the U.S. will bar from the VWP anyone who has traveled to a country that State Department officials consider a "terrorist safe haven", such as Iraq, Syria, Pakistan, Lebanon or Libya. Citizens from VWP countries who have traveled to one or more of these countries will instead need to obtain a visitor's (B-1/B-2) visa at an U.S. consulate before traveling to the U.S. The White House has also announced it is considering implementing a pilot program to collect biometrics information (fingerprints and photographs) from all potential VWP travelers as part of their VWP application, and before they board their U.S.-bound flight. Furthermore, the U.S. is considering increasing fines to $50,000 (up from $5,000) for airlines that fail to properly verify a traveler's passport data (passport number, country of issue, and expiration date) in CBP's Advance Passenger Information System during the check-in process.

While these immediate changes will have little impact on a vast majority of the estimated 20 million annual VWP visitors, future changes to the program – such as a biometrics requirement – may cause significant delays in the (what is now very rapid) VWP travel authorization process. We will continue to monitor these changes and other proposed changes to the VWP and provide updates as they become available.

2. Customs and Border Protection Expands Global Entry Program to U.K. Citizens

Effective December 3, U.K. citizens are eligible to participate in Global Entry, a popular program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. Global Entry participants are allowed to skip long immigration inspection lines at U.S. airports, and instead check-in at a Global Entry kiosk upon arrival in the U.S. (or at Customs and Border Protection Pre-Clearance, found in certain foreign airports). As an added benefit, Global Entry members are eligible for TSA Pre-Check, a program that expedites traveler screening through TSA security checkpoints at more than 150 busy airports throughout the U.S.

As nearly five million Britons visited the United States in Fiscal Year 2015 (and more than 125,000 of those visitors traveled to the United States four or more times within the Fiscal Year), we anticipate that a substantial number of U.K. citizens will seek to enroll in the Global Entry program. Though intended for frequent international travelers, there is no minimum number of trips necessary to qualify for the Global Entry program.

Global Entry is available to U.S. citizens and permanent residents, and citizens from Germany, Mexico, the Netherlands, Panama, and South Korea, and now the United Kingdom. Canadian citizens who are members of the NEXUS U.S.-Canada trusted traveler program also have Global Entry benefits. To enroll, travelers must submit an online application to CBP and pay a $100 fee (U.K. citizens will first need to submit a pre-registration application with U.K. officials in order to gain access to the Global Entry application). CBP screens the application and contacts the applicant to schedule an in-person interview, which normally takes place at a Global Entry-participating airport. Once approved, travelers may enter the United States by using automated kiosks located at select airports.

Global Entry kiosks are now available in most major U.S. airports, including JFK, Newark, Washington (Dulles), Los Angeles/LAX, and San Francisco/SFO, as well as major airports in Canada (including Toronto (Pearson), Montreal (Pierre Elliott Trudeau), and Calgary), Saudi Arabia (Abu Dhabi), Aruba, and Puerto Rico. Additional information about the Global Entry Program and how to apply is available at http://www.globalentry.gov/about.html.

3. USCIS Issues Proposed Guidance on Impact of Job Changes for Adjustment of Status Applicants

The immigration laws allow for the beneficiary of an approved I-140 immigrant visa petition to change jobs and employers without needing to have a new I-140 or PERM labor certification filed, so long as certain criteria are met. Specifically, so long as an applicant's I-485 adjustment of status application has been pending 180 days or more and the beneficiary's new job is in the "same or similar occupational classification" as the original job, the applicant can change positions and employers without endangering the pending green card application. This provision is designed to provide job flexibility to foreign nationals when there have been long government delays in processing their permanent residence applications.

U.S. Citizenship and Immigration Services (USCIS) has issued an important draft memorandum setting forth a detailed framework for assessing whether an adjustment applicant's new job is in the "same or similar" occupational classification as the position listed on the labor certification or immigrant visa petition. While not yet finalized, this guidance is of critical importance to employees with long-standing adjustment of status applications. It explains the types of evidence an immigration examiner will consider when deciding whether an adjustment of status application filed at least 180 days ago for an employee who then changes jobs should still be approved. A summary of the essential points follows:

One important caveat: The memo emphasizes that all adjudications under this provision of the Law require "individualized assessments" by an adjudicator, who must consider the "totality of the circumstances" presented. No one factor is determinative, although certain commonalities between the old and new positions (as discussed below) will go a long way towards convincing an examiner that the jobs are similar.

To establish that a new position is in the same or similar occupational classification as the original job for which a petition was filed, the applicant may submit evidence regarding the Department of Labor's occupational classification codes assigned to the two jobs; the job duties and the skills, experience, education, and licenses required to perform each job; the wages offered for each job; and any other material relevant to a determination as to the similarity of the roles.

Standard Occupational Classification (SOC) Codes

The draft memo first instructs adjudicators to review and compare the six-digit Department of Labor Standard Occupational Classification (SOC) codes of the original and new jobs. All jobs in the United States are classified into 23 "major groups", which are then broken down into 97 "minor groups", 461 "broad occupations" and, finally, into 840 "detailed occupations". Each of the 840 detailed occupations is assigned its own SOC code. For example, the position of Software Developer, Applications is assigned the code of 15- 1132 – with "15" designating the "major group" of all Computer and Mathematical Occupations; the third digit ("1") indicating the "minor group" classification of all Computer Occupations; the fourth and fifth digits ("13") indicating the "broad occupation" of Software Developers and Programmers; and, finally, the sixth digit ("2") indicating the "detailed occupation" classification of Software Developers, Applications. The adjudicator is tasked with determining the appropriate SOC code of the new role by reviewing, among other factors, the job duties, skills, and experience required for the new job, as well as the wage offered for the new position. Once the adjudicator assigns an appropriate SOC code for the new role, he will compare the SOC code of the "new" role with the SOC code for the "old" position, which is listed on the certified PERM and I-140. An exact match in six-digit SOC codes between the old and new jobs means that the jobs "will generally be considered to be in the same occupational classification." A close – but not exact – match in codes (within the same "broad occupation" – i.e., a match of the first five digits of the codes) means that the jobs "will generally be considered to be in similar occupational classifications."

The memo emphasizes that the burden is on the applicant to demonstrate that the relevant positions are in the same or similar occupational classifications – meaning that the beneficiary should present as much evidence as possible to demonstrate to the satisfaction of the examiner that their new job is the same or similar to their old one. For example, a beneficiary may wish to submit a detailed job description for the new role, together with an extensive and complete set of requirements, and offer an analysis and comparison of duties between the old and new roles in order to show the similarity between the positions.

Career Progression and Wage Differences

The memo also helpfully emphasizes that career progression is not necessarily a bad thing for portability purposes. For example, the memo notes that beneficiaries who are now "supervisors and managers of other workers" – who in their old jobs, were one of the supervised workers – would likely be considered to be employed in a similar occupation. Supervisors of workers are generally classified along with the workers they supervise, and such supervisors usually have work experience and perform activities similar to their subordinates. In other words, a managerial employee may still be found to be employed in a similar occupation, so long as he continues to perform similar duties to those he supervises, or he manages the work of individuals who are performing duties the manager used to perform in his original position. The ultimate test is whether the evidence submitted indicates the two jobs still "share essential qualities or have a marked resemblance or likeness."

Finally, the memo emphasizes that differences in salary between the former and new job "may be considered" for purposes of determining similarity, but cautions the examiner that "a difference in salaries alone would not preclude an [examiner] from finding the two positions are similar," as "allowances should be made for normal raises that occur through passage of time" or differences in pay depending on geographic location, size of employer, or other neutral factors unrelated to a difference between the old and new positions. In sum, the beneficiary should offer an explanation of any difference in pay that has nothing to do with a substantial change in occupations (such as a normal raise, move to an expensive geographic market, etc.), which will be considered along with all other evidence presented to show the similarity between the roles.

This draft memo contains some welcome developments. It provides employers and employees with tangible and actionable information about the factors USCIS considers when determining whether a new position qualifies for adjustment of status portability. Most importantly, it recognizes that an adjustment applicant should be able to accept in-line promotions, raises, and new career opportunities (within the same occupation) without fear of a later adjustment denial. However, the memo's heavy reliance on the rigid SOC coding system to compare positions may prove troublesome if examiners begin to strictly rely on the coding system to deny adjustment of status applications for individuals moving to positions outside of the "broad occupation" without considering all evidence in total, as they are instructed to do.

We will provide additional information about the memo and its implementation as it becomes available. We also encourage you to consult with us either when moving employees to another position or when hiring new employees who filed an adjustment of status application at least 180 days ago.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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