"Same or Similar" Occupational Classification Requirement for I-140 Portability

 

Introduction: USCIS Memorandum on «Same or Similar» Requirement for Form I-140 Portability

I-140 portabilityOn March 18, 2016, the United States Citizenship and Immigration Services (USCIS) released a new final Policy Memorandum titled «Determining Whether a New Job is in 'the Same or a Similar Occupational Classification' for Purposes of Section 204(j) Job Portability» («the Memo») [PDF version].1 The Memo sets for USCIS's adjudicative policies for determining whether a new job is in the «same or a similar» occupational classification as the job described on an approved I-140 Petition for purpose of porting the I-140 Petition to a new employer under section 204(j) of the Immigration and Nationality Act (INA). The Memo supersedes prior USCIS agency guidance regarding the «same or similar» requirement under section 204(j). USCIS will apply the Memo to all applications pending or filed with USCIS on or after March 21, 2016. In this article, we will review the Memo and explain its effect on section 204(j) adjudications.

Please see our blog discussing the changes made in the final version of the Memo from the draft version [see blog] as well as our original post on the draft memo [see blog].

To learn more issues involving AC21, please see our full section [see section].

Statutory Background

The approved I-140 petition portability provision is found in section 204(j) of the INA. The statute provides «job flexibility» in the following circumstance:

A[n] [approved I-140 petition] for an individual whose application for adjustment of status pursuant to section 245 of [the INA] 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 similar occupational classification as the job for which the petition was filed.

The Memo concerns the portion of the statute relating to «the same or similar occupational classification.»

Please read our full article on section 204(j) portability to learn about the provision in general [see article].

Definition of «Same or Similar» and Evidentiary Standards

The Memo explains that in determining whether two jobs are in the «same» occupational classification, it looks to determine whether the jobs are «identical,» «resembling in every relevant aspect,» or «the same kind of category thing.» In determining whether two jobs are in «similar» occupational classifications, USCIS will determine whether the jobs «share essential qualities» or have a «marked resemblance or likeness.»

The Memo explains that in order to establish eligibility for section 204(j) portability, the applicant «must establish that he or she meets the relevant eligibility requirements by a preponderance of evidence.» This means that the applicant «must show that the factual circumstances of his or her claim are more likely true than not.» The Memo is clear that the applicant does not have a burden to prove that he or she is eligible with «clear and convincing evidence» or «beyond a reasonable doubt,» both of which are higher evidentiary standards.

Explanation Standard Occupational Classification Codes

The Memo explains that USCIS may rely upon the Department of Labor's (DOL's) system of «Standard Occupational Classification Codes» (SOC) in order to determine whether two jobs are in the same or similar occupational classifications. In so doing, USCIS may compare the code of the original job to the code that an adjustment of status applicant seeks to port his or her I-140 petition to.

The SOC categorizes occupations based on «the type of work performed and, in some cases, on the skills, education, and training required to perform the job.» The SOC classifies occupations with six-number codes. Each SOC code contains six digits. The Memo states that «[e]ach digit or group of digits represents the level of similarity of positions.»

To illustrate, the Memo uses the SOC code for the detailed occupational classification of «web developer.» The code for web developer is 15-1134. We will summarize the Memo's explanation of the code for web developer as follows:

  • [15]-1134: The first two digits indicate the «major group» classification. There are 23 «major groups» in the SOC. In this case the major group is for «Computer and Mathematical Occupations.»
  • 15-[1]134: The third digit indicates the «minor group» classification. The «minor group» descends from the major group. There are 97 «minor groups» in the SOC. In this case the minor group is for «Computer Occupations.»
  • 15-1[13]4: The fourth and fifth digits indicate the «broad occupation» classification. The «broad occupation» descends from the major and minor groups. There are 461 «broad occupations» in the SOC. In this case, the «broad occupation» is for «Software Developers and Programmers.»
  • 15-113[4]: The sixth digit indicates the «detailed occupation» classification. The «detailed occupation» descends from the major and minor groups and the broad occupation. There are 840 «detailed occupations» in the SOC. The detailed occupation is the most specific and here indicates «Web developer.»

The Memo notes that supervisors and managers of other workers are sometimes classified differently than the workers they supervise. In most cases, supervisors of workers in major groups 13-0000 through 29-000 «are generally classified along with the workers they supervise.» However, managers are generally classified the major group 11-0000. In certain cases, the «same or similar» requirement may be met when seeking to port an I-140 petition from a non-manager position to a managerial position classified in the major group 11-0000 [jump to section].

Please note that footnote 13 in the Memo explains that USCIS adjudicators may rely upon additional resources in order to determine whether two positions are in the same or similar occupational classification. The Memo notes the following as examples:

  • DOL Bureau of Labor Statistics' Occupational Outlook Handbook;
  • DOL Employment and Training Administration sponsored Occupational Information Network (O*NET); or
  • DOL Bureau of Labor Statistics' Occupational Employment Statistics database.

Additional resources such as these may help clarify whether two occupations are in the same or similar occupational classification.

Using SOC Codes in the I-140 Portability Context

The Memo states that all evidence should be considered in determining whether two jobs are in the same or similar occupation, including, but not limited to:

  • Job duties of the respective jobs;
  • The skills, experience, education, training, licenses, or certifications required for those jobs;
  • The wages offered for those jobs; and
  • Other material and credible evidence submitted by the applicant.

If the applicant's I-140 petition was supported by labor certification from the DOL, «the SOC code for the original position will have been certified by DOL.» In this case, the applicant must submit evidence only to establish the SOC code associated with the new position with supporting evidence from the intending employer. However, if the I-140 petition was not supported by labor certification from the DOL, the applicant must establish both the SOC code for the original position and the new position with supporting evidence from the intending employer for the new position. It is important to note that except for a position for which the SOC code was certified by the DOL in labor certification, the burden is on the applicant to «demonstrate by a preponderance of the evidence» the proper SOC code for the position in question.

Matching Detailed Occupational Codes

If the applicant establishes that the detailed occupational codes describing the two occupations more likely than not match, «ISOs should generally treat such evidence favorably in determining whether the two positions are in the same or similar occupational classification(s)…» The Memo further states that «such 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.»

In footnote 22, the Memo cautions that in limited cases, «[c]ertain occupations may be classified in a catch-all 'residual classification' for jobs that are otherwise not described in the SOC…» It cities as an example the detailed occupational code 15-1199 for Computer Occupations, All Others. In cases involving identical detailed occupational codes that are for «residual classifications,» USCIS will analyze all credible evidence to determine whether the two positions are in the same or similar occupational classification.

Different Detailed Occupational Codes but Matching Broad Occupational Codes

The Memo states that «if the applicant establishes by a preponderance of the evidence that the two jobs are described by two distinct occupation codes within the same broad occupation code, ISOs may treat such evidence favorably in determining whether the two positions are in similar occupational classifications.» It continues to note that this will generally be sufficient for demonstrating that the two occupations are in similar occupational classifications unless the review of the evidence and the totality of the circumstances indicate that «favorable treatment is not warranted.»

The Memo provides the following set of likely «similar» occupations:

  • Computer Programmers (15-1131);
  • Software Developers, Applications (15-1132);
  • Software Developers, Systems Software (15-1133); and
  • Web Developers (15-1130).

The Memo states that these «detailed occupations may be considered to be in similar occupational classifications given the largely similar duties and areas of study associated with each classification.»

The Memo provides the following set of occupations that may not be «similar»:

  • Geographers (19-3092); and
  • Miscellaneous Social Scientists and Related Workers (13-3090).

As with the previous example, these two occupations have different detailed occupational codes but matching broad occupational codes. However, the Memo notes that in this case, «the workers in [these] respective occupations largely do not share the same duties, experience and educational backgrounds.» In such cases, USCIS may find that the two occupations are not in fact in similar occupational classifications.

Career Progression

The Memo crafted principles for considering «career progression» in the section 204(j) context with regard to determining whether two positions are in the same or similar occupational classification.

First, the Memo notes that certain cases of career progression may be relatively straightforward. For example, if the applicant is seeking to port his or her I-140 petition to a job where he or she will serve in a «more senior related position that does not have a managerial or supervisory role,» USCIS may consider whether the two positions are in the same or similar occupational classifications as we discussed in the previous section.

However, if the applicant seeks to port his or her I-140 petition from a position that did not involve a managerial or supervisory element to one that does, the analysis becomes more complicated. As we noted earlier, supervisors «are generally classified along with the workers they supervise.» However, anagers are generally classified differently. The Memo states that «if evidence provided by applicants establishes that, in their new positions, they are primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants' original positions, ISOs may treat such evidence favorably in determining whether the two jobs are in similar occupational classifications…»

To illustrate its principles for career progression, the Memo provides two examples.

Career Progression to Occupation in Same or Similar Occupational Classification

  • Original Job: Software Developers, Applications (15-1132)
  • New Job: Computers and Information Systems Managers (11-3021)

In this case, USCIS may determine that the two jobs are in the same or similar occupational classification because Computer and Information Systems Managers «generally manage individuals in positions that fall within occupational classifications that are the same or similar to the occupational classification of the original job offer…» Please note, however, that each individual case is unique and USCIS will assess all of the credible evidence to make a final determination.

Career Progression to Occupation not in the Same or Similar Occupational Classification

  • Original Job: Cooks, Restaurant (35-2014)
  • New Job: Food Service Managers (11-9051)

In this case, USCIS may determine that the two jobs are not in the same or similar occupational classification. The Memo states that «[t]his is because the duties of Food Service Managers-duties that involve planning, directing, or coordinating activities of an organization that serves food and beverages-are generally different than those of Restaurant Cooks…»

However, the Memo notes that there «may be instances where the evidence, in light of the totality of the circumstances, warrants a favorable portability determination based on normal career progression even though the individual is not managing persons in jobs that are in the same or similar occupational classification(s) as the applicant's original position.» Using the example of Cooks and Food Service Managers, the Memo suggests that if the applicant demonstrates that his or her original job duties as a Restaurant Cook «included ordering supplies, setting menu prices, and planning the daily menu,» he or she may be able to demonstrate that change to Food Service Manager would be considered normal career progression and meet the standard for same or similar.

The Memo notes that in all career progression cases, USCIS will consider the totality of the circumstances in determining whether the positions are in the same or similar occupational classifications.

Other Cases Where SOC Codes are not Grouped Together

In addition to cases involving normal career progression, there may be other situations in which the SOC codes for two positions are not grouped together but the USCIS may determine, in light of the totality of the circumstances, that the two jobs can be considered in the same or similar occupational classification(s). The Memo explains, for example, that in a case where the original job was classified under 15-0000 for Computer and Mathematical Occupations and the intended job is classified under 17-0000 for Architecture and Engineering Occupations, the applicant may establish by the preponderance of the evidence that the two jobs «share essential qualities or have a marked resemblance or likeness.»

The Memo provides two more specific examples of similar situations in which, depending on the facts of the case, the applicant may demonstrate that the two positions meet the same or similar requirement.

Example 1

  • Original Job: Personal Financial Advisor (13-2052)
  • New Job: Financial Analyst (13-2051)

In this situation, if the applicant can establish that the two positions share overarching duties and the same skills, experience, and education are required to do both jobs, he or she may be able to establish section 204(j) portability eligibility. However, the ability of the applicant to do so will depend on the specific facts of the situation.

Example 2:

  • Original Job: Microbiologist (19-1022)
  • New Job: Medical Scientist, Except Epidemiologist (19-1042)

In this situation, if the applicant can establish that the primary duties of both positions «share essential qualities» or have a «marked resemblance or likeness,» he or she may be able to establish that they are similar. In the specific example, the case would be bolstered if the applicant demonstrates that the positions require «similar education, experience, and skills to perform the associated duties.»

Self-Employment

The Memo makes clear that, consistent with existing policy, an applicant may port an approved I-140 petition to self-employment. As with any other portability case, the applicant will be required to demonstrate that the intended self-employment is in the same or similar occupational classification as the position specified in the I-140 petition.

Differences in Wages

The Memo explains that differences in wages between the two positions may be considered in determining whether the positions are similar. However, a similarity or difference in wages does not serve as conclusive evidence regarding the similarity of two positions. The Memo notes that «allowances should be made» for normal raises. Various other factors may be taken into account such as different economic sectors or geographic locations, or if the difference results from factors such as corporate mergers, the differing sizes of the employers, or different compensation structures. Additionally, the Memo acknowledges that compensation may change if the applicant moves from a for-profit employer to a non-profit employer, academic institution, or public employer (or vice versa).

If there is a «substantial discrepancy» in wages between the original position and the position to which the applicant seeks to port his or her I-140 petition, the Memo encourages the applicant explain the discrepancy in detail to help USCIS adjudicate the application effectively.

Conclusion: USCIS Memorandum on «Same or Similar» Requirement for Form I-140 Portability

The Memo helps clarify how USCIS will determine for section 204(j) portability purposes whether two occupations are in the same or similar occupational classification. Specifically, the Memo illuminates how USCIS will rely upon the SOC in making section 204(j) determinations.

An applicant seeking to exercise section 204(j) portability should consult with an experienced immigration attorney for help in determining whether he or she can establish that an intended job is in the same or similar occupational classification to the original job for which the I-140 petition was approved. If so, an experienced immigration attorney will be able to help the applicant compile credible evidence to best make the case to USCIS that the two positions are in the same or similar occupational classifications. As we discuss in our article about section 204(j) portability [see article], applicants should seek to exercise I-140 portability with caution to minimize the risk of adverse immigration consequences.

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  1. Policy Memo, USCIS, PM-602-0122.1 (Mar. 18, 2016)