USCIS Draft Policy Memorandum on AC21 “Same or Similar” Job

The U.S. Citizenship and Immigration Services (USCIS) issued a draft policy memorandum on November 20, 2015, addressing the same-or-similar occupational classification requirement for job portability under the American Competitiveness in the Twenty-First Century Act (AC21). AC21 allows an individual who has an employment-based (EB) application for adjustment of status (form I-485) pending for at least 180 days to change jobs without restarting the permanent residence (commonly, “green card”) process. The new job must be in the same-or-similar occupational classification. Since the passage of AC21 in October 2000, the USCIS has released various interim memos and interpretations of AC21. The draft policy memorandum is aimed at providing cohesive guidance for AC21 job portability adjudications.

The USCIS intends for the memorandum to become effective on March 21, 2016. Comments on the draft policy memo will be accepted until January 4, 2016.

Preliminary Evidence for AC21 AOS Portability

The memo sets forth the types of proof an applicant can submit to establish qualification under the AC21 same-or-similar occupational classification provisions. In addition to the U.S. Department of Labor (DOL) classification, the relevant evidence may include job duties and requirements such as education, training, and skills, as well as any other material proof.

Same-or-Similar Occupations and SOC Codes

The draft policy memorandum provides guidance to USCIS adjudicators for deciding whether a foreign national’s new job offer qualifies under AC21 portability. The memo directs adjudicators to assess whether the initial and new jobs have comparable designations under the DOL Standard Occupational Classification (SOC) system.

The SOC code is a 6-digit number. The first two numbers indicate the “major group” for the occupation. The remaining four numbers describe the job more precisely. For example, the SOC code for a web developer” is 15-1134. The first two numbers (15) describe the major group, which is 15-000 computer and mathematical occupations. The third number (1) describes the minor group classification – in this case, 15-1100 computer occupations. The fourth and fifth numbers (13) indicate the broad occupation, 15-1130 software developers and programmers. The sixth number (4) indicates the detailed occupation, 15-1134 web developers.

The draft memorandum advises adjudicators to determine the SOC code for the new position and compare it to the initial position SOC code. If an applicant establishes that the SOC codes for both positions are identical, the position is generally considered the same for AC21 portability purposes. The exception to this is for occupations classified in residual classifications (e.g., computer occupations, all others) if the preponderance of the evidence weighs against favorable treatment.

Examples of Similar and Dissimilar SOC Codes

If the applicant demonstrates that the broad occupation designation (i.e. the first through fifth numbers) is the same, the positions generally will also be considered as similar for AC21 purposes. The draft memo discusses the positions of computer programmers (15-1131), software developers, applications (15-1132), software developers, systems software (15-1131), and web developers (15-1134). Because the broad occupation code for these occupations (15-1130) is the same, these positions normally should be considered similar for portability.

The memorandum cautions that this analysis will not always hold true. For example, geographers (19-3092) and political scientists (19-3090) most likely would not be considered similar, despite sharing the same broad occupation code (19-3090) because the actual duties and educational requirements of the two positions are quite dissimilar.

Career Progression Recognized and Permitted

Pursuant to the draft memo, the USCIS recognizes that individuals normally progress in their respective careers over time and that this factor must be applied to the AC21 portability analysis. Given the long delays, applicants often advance to greater job responsibilities in the years between the PERM labor certification filing and qualification to use AC21 portability.

The memorandum notes that the standard SOC code analysis may favorably resolve career progression issues. This is typically the case if the applicant holds a more senior position, but not a primarily managerial or supervisory role (e.g., a software engineer becomes a senior software engineer). Absent the shift into a managerial / supervisory capacity, the positions likely will have an identical SOC code.

If, however, an applicant has moved from a technical role into a managerial or supervisory role, the analysis is different. In this situation, the adjudicator must determine whether the applicant is “primarily responsible for managing the same-or-similar functions of the original job or the work of individuals whose jobs are in the same-or-similar occupational classification/s …” as the applicant’s original position. In other words, if the new position primarily involves supervising or managing people who are performing the original job, then the position normally should be considered similar for AC21 portability.

Other Jobs Sharing Essentially Similar Qualities

The draft memorandum also recognizes that there may be other job changes that would qualify for AC21 portability, even if the new position does not precisely satisfy either of the previous criteria. For example, an applicant originally offered a job within the computer and mathematical occupations (15-0000) SOC code might be able to port to a job within the architecture and engineering occupations (17-0000) SOC code if the preponderance of the evidence indicates that the two jobs share “essential qualities or have a marked resemblance or likeness.”

Likewise, the memo confirms that the variations in job duties that arise from different employers or different economic sectors should not preclude a finding that the jobs are similar. For instance, an applicant originally offered a position as a financial advisor (13-2052), advising clients at a financial consulting firm, who is now offered a position as a financial analyst (13-2051), performing in-house financial analysis at a pharmaceutical company, will have somewhat different duties. However, the memorandum notes, “(1) the overarching duty of both positions is to apply accounting and investment principles in order to develop financial strategies, and (2) the same skills, experience, and education may be required to perform both jobs.” Therefore, these two jobs can be determined as similar, even though the day-to-day duties may be somewhat different.

Wage Differences Considered in AC21 Analysis

The memo states that differences in the wage of the original position and the new position may be considered during AC21 analysis. However, a difference in wage, in and of itself, should not lead to a finding that the two jobs are not similar. The memorandum reminds adjudicators that raises for inflation or promotion are normal and do not necessarily indicate a lack of position similarity.

Likewise, wages vary by geographic areas, the size of the employer, and compensation structure, in addition to variations between private, public, and academic employers. Therefore, a difference in pay is not determinative and must be considered only in conjunction with other evidence.

Conclusion

The Murthy Law Firm is in the process of preparing a response to the request for public comments on this AC21 draft memo. Once the memo is finalized and put into effect, the hope is that it will serve to provide more clarity to stakeholders regarding the potential benefits and limitations of job portability under AC21.

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