"Same or Similar" Draft Memorandum for I-140 Portability and AILA's Comments

Introduction: USCIS Draft Memorandum on I-140 Portability

Draft Policy MemorandumOn November 20, 2015, the United States Citizenship and Immigration Services (USCIS) released a draft policy memorandum (Draft PM-602-0122) titled «Determining Whether a New Job is in „the Same or a Similar Occupational Classification“ for Purposes of Section 204(j) Job Portability.» [PDF version] The final memorandum will update chapters 20.2 and 22.2 of the Adjudicator’s Field Manual (AFM). The memorandum was open for public review and feedback through January 4, 2016. In this post, I will review key points in the draft memorandum along with comments submitted by the American Immigration Lawyers Association (AILA) on January 4 [PDF version].1

Purpose of the Same or Similar Draft Memorandum

The statutory authorities for the proposals in the memorandum are the I-140 portability provisions found in sections 204(j) and 212(a)(5)(A)(iv) of the Immigration and Nationality Act (INA). One requirement for exercising I-140 portability is that the position that an applicant seeks to port to is in the «same or similar» occupational classification as the previous position. The memorandum «is intended to address … uncertainty by providing additional guidance for determining whether two jobs are in the same or similar occupational classification(s).»

Standard of Proof: Preponderance of the Evidence

In order to exercise I-140 portability, an applicant need only establish that he or she meets the eligibility requirements by a «preponderance of the evidence.» This means that the adjustment of status applicant is only required to show that he or she is more likely than not eligible to exercise I-140 portability.

AILA’s Comments

AILA supported the memorandum’s clear statement that the preponderance of the evidence standard will be used.

Use of Standard Occupational Classification Codes

In order to determine whether two positions are in the same or similar occupational classification, the memorandum explains that officers may rely in part on the Department of Labor’s (DOL) Standard Occupational Classification (SOC) to determine the level of similarity between two positions. The six-number code breaks classifications down into a:

  • Major Group
  • Minor Group
  • Broad occupation
  • Detailed occupation

The memorandum notes that it is important for adjudicators to be aware that managers and supervisors are generally classified in distinct major groups.

AILA’s Comments

With regard to the use of SOC codes, the AILA recognized that «the SOC represents a reasonable framework for this type of analysis.» However, AILA noted that the SOC codes were not established for this purpose, and thus that the SOC codes will not always be dispositive. AILA further noted that the DOL sometimes chooses incurred SOC codes in the prevailing wage/labor certification process. In addition, AILA asked USCIS to address the fact that there are cases where the SOC code certified by DOL for an individual’s I-140 petition may no longer exist when he or she seeks to exercise I-140 portability.

Accordingly, AILA encouraged USCIS to note these limitations on SOC codes in the I-140 portability context.

Matching Detailed Occupational Codes

The memorandum states that if the applicant establishes by a preponderance of the evidence that the two positions have the same detailed occupational codes, adjudicators «may treat such evidence favorably in determining whether the two positions are in the same or similar occupational classification(s).» It further stated that «[s]uch positions will generally be considered to be in the same occupational classification, unless … the preponderance of the evidence indicates that favorable treatment is not warranted.»

AILA’s Comments

AILA urged the USCIS to amend this portion of the memorandum to state that when the preponderance of the evidence establishes that two positions have the same detailed occupational codes, that «there is a presumption that 204(j) portability has been established…»

Different Detailed Occupational Codes Within the Same Broad Occupation

The memorandum states that if the application establishes by a preponderance of the evidence that the two occupations have occupational codes within the same occupational classification, such evidence may be treated favorably for establishing eligibility for I-140 portability, unless the totality of the circumstances and the preponderance of the evidence indicates that favorable treatment is not warranted.

The memorandum further notes that in many cases, establishing the same broad occupation codes may not be sufficient to establish by a preponderance of the evidence that two jobs are in similar classifications.

AILA’s Comments

AILA agreed with the memorandum’s language that a review of the totality of the evidence is appropriate in determining whether two jobs in this case are in a «similar occupational classification.»

Career Progression and «Other Variations»

The memorandum explains that in a situation where an applicant moves from a non-managerial or supervisory position to a managerial or supervisory position, he or she may support that the positions are in the same or similar occupational classifications by demonstrating that they will be managing similar functions of their original jobs or the work of individuals who are in similar occupational classifications as the applicant’s original position.

USCIS also noted that it may be possible to exercise I-140 portability from one job to another where «normal career progression» is not reflected. In these cases, the major occupation codes of the positions will not match. The memorandum instructs adjudicators to consider the totality of the circumstances in determining whether the two positions «share essential qualities or have a marked resemblance or likeness» in order to be sufficiently similar for I-140 portability purposes. The same standard may be applied to differences that arise by virtue of working for different employers.

AILA’s Comments

AILA applauded USCIS for including the section about career progression. It did not recommend any changes to these two sections.

Differences in Wages

The memorandum explains that differences in wages may be considered in determining whether two jobs are in the same or similar occupational classification. However, just as the same wage does not prove that the jobs are in the same or similar occupational classification, a difference in wages does not prove that they are not. The memorandum states that a difference in wages and any explanation for the difference shall be reviewed along with all other evidence presented.

AILA’s Comments

AILA believes that wages should not be a factor at all in determining whether two occupations are in the same or similar occupational classification. AILA recommended that the paragraph be stricken from the memorandum. Alternatively, AILA urged USCIS to clearly state that a wage difference between two occupations «is not in and of itself dispositive» if it keeps the paragraph in the final version.

Additional Suggestions from AILA

  • Include language that the Dictionary of Occupational Titles (DOT)/O*NET may be consulted in determining whether two positions are the same or similar.
  • Incorporate a paragraph confirming that self-employment is permitted.
  • Include a statement that geographic location is not relevant.

Conclusion: USCIS Draft Memorandum on I-140 Portability

With the review and feedback period completed, we now wait for USCIS to publish the final version of the memorandum. The draft memorandum goes a long way toward clarifying how USCIS will assess whether two positions are in the «same and similar» occupational classification. AILA provided numerous suggestions that would make portions of the memorandum more favorable to applicants seeking to exercise I-140 portability, especially with regard to clarifying the limitations of relying on SOC codes.

We will update the AC21 section of the website once USCIS releases the final version of the memorandum.

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  1. AILA Doc. No. 16010430 (Jan 4. 2016)