Murthy Law Firm Advocates on AC21 Memorandum

For many years, the Murthy Law Firm has addressed questions regarding the interpretation of a “same or similar” occupational classification for job portability in the permanent resident (green card) process. This is a key concept in the American Competitiveness in the 21st Century Act (AC21), yet, for more than a decade, it has lacked a clear definition. To that end, the U.S. Citizenship and Immigration Services (USCIS) issued a draft memorandum and comment request on November 20, 2015. Accordingly, the Murthy Law Firm submitted comments to the USCIS asking for a number of changes to be made prior to releasing the final version of the memo.

Background: Draft Memorandum

Under AC21, an individual who has an employment-based (EB) application for adjustment of status (form I-485) that remains pending for at least 180 days may change jobs to one that is in the same or similar occupational classification without restarting the green card process. The term “same or similar,” however, has never been truly defined by the USCIS. This past November, the USCIS took steps to address this shortcoming by releasing a draft policy memorandum, entitled Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Section 204(j) Job Portability. The contents of this long-awaited draft memo were summarized in the MurthyDotCom NewsBrief, USCIS Draft Policy Memorandum on AC21 ‘Same or Similar’ Job (03.Dec.2015).

Subjective and Discretionary Criteria in Current Policy

In the comments made by the Murthy Law Firm, we support the issuance of formal guidance to USCIS adjudicators on the AC21 same-or-similar requirements. However, in our opinion, the draft memorandum falls short of its stated goals, as well as those outlined by the Obama administration to promote consistency and efficiency in AC21 portability adjudications, expand on the protections being afforded employment-based immigrants, and increase the ability of workers waiting for a green card to change jobs or receive promotions. In our view, the memorandum is too subjective and provides USCIS officers with a level of discretion that undermines its very purpose.

Request of Safe Harbor Provisions

In our comments, the Murthy Law Firm urges the USCIS to add more objective criteria and safe harbors for the protection of those with pending I-485s who wish to change jobs or receive promotions. We assert that the goals of consistency, efficiency, and increased job flexibility should be met through the creation of liberal and straightforward criteria. Thus, the creation of “safe harbors” is required in order to meet the stated goals.

Recommend: Matching SOC Code Should be Conclusive Presumption of Same / Similar

The draft memo states that, if an applicant establishes by a preponderance of the evidence that the detailed standard occupational classification (SOC) code describing the original and new positions are the same, immigration officers may treat such evidence favorably. In our comments, the Murthy Law Firm argues that simply allowing the officer to “treat such evidence favorably” creates adjudicatory discretion and unnecessary uncertainty. Such cases should fall within a safe harbor and generally result in a clear-cut approval.

Recommend: Same Broad Occupation Code Presumed to be Same / Similar

Similar to the above, the draft memo states that if the applicant establishes that the two jobs are described by two distinct, detailed occupation codes, within the same broad occupation code, immigration officers may treat such evidence favorably. In our comments, the Murthy Law Firm again rejects the discretion and uncertainty this would create. We request that such cases also fall within a safe harbor, with the possible exception of those that are categorized under a residual classification, as described below.

Recommend: Rebuttable Presumption for Residual Classifications

The USCIS notes that certain occupations may be classified in a catchall, residual classification for jobs that are otherwise not described in the SOC. An example of this, cited in the memo, is the category of Miscellaneous Social Scientists and Related Workers, which includes quite dissimilar positions, such as political scientist and geographer.

The Murthy Law Firm argues that, in the interest of efficiency and consistency, these reviews should still be as objective as possible. To that end, we suggest that if two jobs are within the same detailed residual occupation, there should be a rebuttable presumption that the positons qualify as same / similar. There should be a subjective review of the totality of the circumstances to assess the same / similar decision only when the detailed residual occupations differ.

SOC System is an Imperfect Measure: Career Progression and Other Variations

The Murthy Law Firm notes that the SOC system was not created for purposes of AC21 portability decisions. The nature of the SOC system makes it inevitable that some positions with overlapping requirements and duties fall within different major group codes. Therefore, we support the USCIS’s recognition of the possibility of AC21 portability being available notwithstanding SOC code variations. The guidance provided for job changes due to career progression and other variations is favorable. Allowances for career progression facilitates U.S. employers to promote from within and allows individuals to maximize their potential, and contribute fully to the U.S. economy. For further clarity, at the Murthy Law Firm, we requested additional examples for the career progression analysis and situations falling within other variations.


In the many years since the enactment of AC21 in October 2000, we have seen that the USCIS generally has interpreted “same or similar” rather broadly for AC21 purposes. While guidance and regulations are long overdue, it is important that the final memo does not end up making the system more rigid and less beneficial to foreign national workers and employers seeking to promote or hire such workers. The Murthy Law Firm will continue to advocate for positive changes to immigration policy. Watch MurthyDotCom for any further developments related to the AC21 memo.


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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.