Comparing the "Same or Similar" Final Memorandum to the Draft Memorandum

Written by Alexander J. Segal on

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Comparing the Final “Same or Similar” Memorandum to the Draft Memorandum

On March 18, 2016, the United States Citizenship and Immigration Services (USCIS) released a final Policy Memorandum (“Final Memo”) setting forth the rules regarding the “same or similar” occupational classification requirement for exercising section 204(j) I-140 petition portability [PDF version]. We work through the Final Memo on site [see article]. In a separate article [see article], we examined the Draft Memorandum (“Draft Memo”) [PDF version] on the issue released on November 20, 2015. In that article, we discussed at comments submitted by the American Immigration Lawyers Association (AILA) regarding the Draft Memo [see comments]. In this post, I will revisit our article on the Draft Memo and examine how AILA's comments and suggestions fared in the Final Memo.

1. Standard of Proof: Preponderance of the Evidence

AILA supported the statement in the Draft Memo that an applicant for section 204(j) portability [see article] need only establish that he or she is eligible by a preponderance of the evidence (meaning that the applicant is more likely eligible than not). The Final Memo retains the same language.

2. Use of Standard Occupational Codes

AILA recognized that “the SOC represents a reasonable framework for this type of analysis.” However, AILA cautioned against overreliance on the SOC because the system was not established for the purpose of determining the level of similarity between two jobs. AILA asked USCIS to acknowledge limitations of the SOC for portability purposes in the Final Memo.

The Final Memo does not directly address “inappropriate SOC codes” assigned in labor certification. In fact, it does not provide any avenue for an applicant to argue that an SOC code assigned in labor certification was inappropriate. It also does not address a situation in which the SOC code assigned to the original petition no longer exists. The Final Memo acknowledges “catch-all” classifications, but only in the aspect that adjudicators “should carefully review the evidence to determine that [two positions with the same catch-all classification] are in the same or similar occupational classification.”

3. Matching Detailed Occupational Codes

AILA asked USCIS to state in its Final Memo that when two positions have “matching detailed occupational codes,” there should be a “presumption that 204(j) portability has been established…”

The Final Memo does not go quite that far, instead stating that “[s]uch positions will generally be considered to be in the same occupational classification unless, upon review of the evidence presented and considering the totality of the circumstances, the preponderance of the evidence indicates that favorable treatment is not warranted.” The Final Memo retains a footnote explaining that if two occupations are in the same catch-all classification, further investigation is warranted to determine whether they are in the same or similar occupational classification.

4. Different Detailed Occupational Codes Within the Same Broad Occupation

AILA supported the Draft Memo's language that a review of the “totality of the evidence” is appropriate for determining whether two positions within the same broad occupation are similar for section 204(j) purposes. The same standard is used in the Final Memo.

5. Career Progression and “Other Variations”

AILA supported the Draft Memo's language regarding career progression. The Final Memo retains the standards from the Draft Memo.

6. Differences in Wages

AILA argued that differences in wages should not be considered in determining whether two positions are in the same or similar occupational classification. The Final Memo did not adopt this position, instead retaining the language that differences in wages should be considered along with all other relevant evidence.

However, AILA requested that a footnote stating that “[A]n increase or decrease in pay may not be dispositive” be changed to “is not.” The Final Memo changed the footnote to state that “An increase or decrease in pay, in and of itself, is not dispositive.”

7. Additional Comments

AILA advocated for the Final Memo including language that the Dictionary of Occupational Titles (DOT)/O*NET may be used in section 204(j) adjudications. The final Memo includes this language in a footnote.

AILA asked that the Final Memo include a paragraph confirming that self-employment is permitted. The Final Memo includes self-employment in a sentence in the Memo and states unequivocally in a footnote that an applicant may port to self-employment.

AILA requested that sentence be included in the Final Memo that states that geographic location is not relevant for section 204(j) portability purposes. The Final Memo notes on multiple occasions that an applicant may port to a position in a different geographic location than the original job offer.