On November 20, 2015, the Department of Homeland Security ("DHS") issued a significant draft policy memorandum ("PM") containing proposed guidance on the definition of "same or similar" under INA Section 204(j), which is relevant to the job mobility of foreign workers sponsored for legal permanent residency by a U.S. employer. This PM is open for public comment until January 4, 2016.

I. Background

In 2000, Congress enacted the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313, to address the employment backlogs created by country quotas and lengthy immigration processing delays. One of AC21’s statutory provisions designed to enhance employment portability permits employment-based adjustment applications to change jobs and/or employers if they are the beneficiaries of an I-140 visa petition and an I-485 (adjustment of status) application that has been pending for 180 days or longer. The statutory standard for permitting a job change without retesting the labor market and/or filing a new I-140 visa petition is whether the two jobs are in the “same or similar” occupational classification. As with many statutes, interpretation of the text was left to federal agencies; in this case, the authority to interpret and administer the statute was entrusted to the former INS and, since 2003, to the USCIS. 

While the INS and USCIS have published numerous policy memoranda and FAQs clarifying the interpretation and enforcement standards for this statutory provision, criticism and uncertainty about the meaning of “same or similar” has remained. The meaning of this phrase has significant consequences for foreign nationals who have successfully navigated the first two phases of the permanent residency process, namely the labor market test and I-140 visa petition, and are now patiently awaiting the availability of a visa number. Fear about the consequences of taking a new position, whether with a new employer or internally, has restrained the internal career progression and job mobility of some foreign nationals. This uncertainty has also impacted U.S. employers who may wish to “promote” foreign nationals in the permanent residency process, or employ foreign nationals in the permanent residency process with another U.S. employer.

II. Significance of the Policy Memorandum

The new PM offers some clear rules about how to determine whether a new position is in the “same or similar” occupational classification as the original position. The PM first reiterates that the applicable standard for determining whether the new position is in the “same or similar” occupational classification as the old position is by a preponderance of the evidence. It also reiterates that the USCIS will make such determinations based upon the totality of the circumstances.  It then explains how adjudicators should make such determinations, and provides a detailed background of the DOL’s SOC (Standard Occupational Classification) system for dividing all professions. It summarizes the rules as follows:

• The first two digits of an SOC (e.g. 15-1132) is the major group classification (15 in this case refers to all computer and mathematical occupations)
• The third digit is the minor group classification. In this example, the first “1” refers to computer occupations.
• The fourth and fifth digits together are the broad occupation. In this example, ”13” is the code for “software developers and programmers”.
• The sixth digit (2) is the detailed occupation, “applications software developers” in this instance.

The PM then offers several “rules of thumb” that should generally determine whether or not a position is in the “same or similar” occupational classification:

• Positions within the same SOC code should generally be treated as being in the “same or similar” occupational classification;
• Positions with different detailed occupational codes that are within the same broad occupation (digits 4 and 5 are the same, but digit 6 differs) should also weigh heavily towards a favorable finding. There are exceptions to this rule.

Career Progression: Significantly, the PM also recognizes that the definition of “same or similar” encompasses career progression. The length of the permanent residency process can result in the elevation of a person into an entirely new role with a different SOC major group classification after an adjustment application has been filed. 

Analysis by reference to the SOC system can be instructive. The DOL categorizes managerial roles in the major group “11”; the “Computer and Information Systems Manager” position would be SOC 11-3021 while a “Computer Programmer” that he/she manages is classified as SOC 15-1131. A person in the SOC 15-1131 classification may be promoted into a managerial role (SOC 11-3021) and now has managerial and supervisory responsibilities over workers in related classifications (e.g., 15-1132 “software developers, applications”, 15-1133 “software developers, systems software”, and 15-1134 “web developers”). In this instance, notwithstanding the fundamental change in the SOC, the new role could very well be in the “same or similar” occupational classification as the old role.

Other variations: The PM also recognizes that variations in job duties arising from the fact that the positions are with different employers in different industries do not preclude a finding that they are in the “same or similar” occupational classification. Instead, the positions may be viewed as being the “same or similar” because they involve the application of the same principles, and the same education, experience, and skills are required to perform the job.

The PM offers two favorable examples, namely:

• A financial advisor (SOC 13-2052) who becomes a financial analyst (SOC 13-2051)
• A microbiologist (SOC 19-2022) who becomes a medical scientist (19-1042)

While these examples contain similarities in their SOC codes that would already warrant a favorable finding, they are illustrative of more logical and principled agency reasoning in making AC21 determinations.

Differences in Wages: The PM reiterates that differences in wages may be relevant to an AC21 determination, but also emphasizes numerous distinctions between jobs that could impact pay, including but not limited to geography, nature of the employer (private for-profit versus non-profit academic), size of the employers, and different compensation methodologies. Such differences should not, therefore, be determinative of an AC21 finding. The burden falls upon the applicant, however, to justify any differences in pay and to demonstrate that such a distinction does not otherwise mean that the positions are not in the same or similar occupational classifications.

Employer Takeaways: This PM is a reasonable attempt to offer clarity and definition to a vague statutory term. It also provides a starting point for advising employers and employees alike on the portability of a particular employee. Furthermore, the clarification on promotions is very valuable and will offer significant reassurance to employers and employees alike when they are considering promoting a foreign national in the midst of the permanent residency process. This is particularly so for nationals of India and China, who remain subject to lengthy waiting periods for their green cards due to the country quotas.