Q & A: I-140 portability under AC-21 with a big jump in salary

Question: I have an approved I-140 for Company A, priority date in January 2007, adjustment of status pending since August 2007. I moved to Company B with a valid EAD and my salary doubled from $65K to $125K. I am getting another offer with Company C, for 140K want to join until I get my green card. I heard multiple job change/significant increase in salary negatively impacts my ability to adjust status to green card. Will a salary jump from 65K (noted in original labor certification) to 140K have a negative impact on my adjustment of status case?

Answer: The number of job changes should not be a concern. Further, AC-21 does not impose a requirement that your new employer pay you the prevailing wage specified in your prior labor certification application. Your eligibility to adjust status to green card is based on whether or not your new job is in the same or similar occupational classification.

USCIS guidance (memoranda) does indicate that a “substantial discrepancy” between the wage offered for the initial position and the wage offered for the new position, may be factored into a decision about whether similarity exists. In other words, if the difference in wages is “substantial” USCIS might question whether the new job is truly the same or similar to the job described in your labor certification.

Note the following relevant portions from a Michael Aytes memo dated December 27, 2005:

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?

Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:

A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.

B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.

C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?

Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”