Final Policy on AC21 “Same or Similar” Job Requirement

On March 18, 2016, the U.S. Citizenship and Immigration Services (USCIS) issued the finalized policy memorandum on determining whether a new job is the same or similar in the context of a job change pursuant to the American Competitiveness in the Twenty First Century Act (AC21). The memo is designed to provide guidance for USCIS adjudicators reviewing applications for adjustment of status (form I-485), but is equally instructive for other stakeholders, including attorneys, employers, and foreign national workers.

Job Portability Under AC21

AC21 allows an I-485 applicant to move to a position that is in the “same or similar occupational classification” as the one set forth in the underlying PERM labor certification once the I-485 has been pending for at least 180 days. The memorandum provides guidance to adjudicators on the meaning of “same or similar occupational classification” and how AC21 cases are to be evaluated.

Final Memorandum Matches Draft Version

With some minor exceptions, the final AC21 job portability memorandum is virtually identical to the draft memorandum that was released in November 2015. Thus, the detailed summary provided in the MurthyDotCom NewsBrief, USCIS Draft Policy Memorandum on AC21 Same or Similar Job (03.Dec.2015) applies to the final policy guidance.

Key Points Summarized in AC21 Portability Memo

The key points in the memorandum are:

• The standard of evidence is “preponderance of the evidence,” which is defined as “more likely than not” or “probably true.”

• Evidence considered includes, but is not limited to, the U.S. Department of Labor (DOL) standard occupational classification (SOC) codes. Other evidence can include: job duties, skills, experience, education, training, licenses, and any other material and credible evidence.

• AC21 permits lateral moves, career progression, and/or self-employment.

• Positions falling within identical SOC codes are generally (but not automatically) considered as qualifying for AC21 portability. The same is true for positions within the same SOC broad occupational code (i.e. first five digits match). Exceptions are allowed if the evidence contradicts the claimed job similarity, such as widely varying positions that fall within “residual” or “catch all” SOC codes.

• Career progression to positions in different SOC codes can be acceptable for AC21 portability. AC21 qualification includes job progression to the management of functions or positions that are the same or similar to the original sponsored employment.

• The AC21 same or similar requirement can also be met by positions in different SOC codes, even without career progression. If the evidence shows that the jobs share essential qualities or resemble each other, there is potential AC21 portability. This general recognition allows for variations in SOC codes that reflect different industries, but where the jobs are quite similar in duties, skills, requirements, and other factors.

• Wage differences are not determinative. Wage differences are to be reviewed in light of geography, inflation, promotion, employer size, industry, and other relevant factors.

Conclusion

The USCIS final guidance memorandum is largely intended to compile and synthesize the numerous AC21 guidance memos that the USCIS has issued since 2001. The guidance for cases that have SOC code variations, including the common job progression scenario, has the promise of being helpful to those intending to change jobs or employers. For cases in which the SOC codes do not match, it remains to be seen how liberally the USCIS will interpret the rules provided for under the memo.

Copyright © 2016, MURTHY LAW FIRM. All Rights Reserved