WHAT’S HAPPENING
On November 20, 2015, USCIS released a Draft AC21 Policy Memorandum (“Draft Memo”) which seeks to clarify what constitutes “the same or similar occupational classification” for purposes of portability under The American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) in order to provide more predictability, efficiency, and consistency in AC21 portability determinations.
As background, The American Competitiveness in the Twenty-First Century Act of 2000 contains a provision which permits certain foreign nationals to change jobs or “port” the offer of employment on which their adjustment of status application is based from one job to another job as long as both jobs are in “the same or similar occupational classification” without having to file a new I-140 immigrant petition and/or PERM labor certification. To qualify for AC21 portability, a foreign national’s adjustment of status application, Form I-485, (“AOS Application”) must have been pending with USCIS for 180 days or more.
Despite the flexibility provided to eligible individuals to port their job to a new employer when their AOS Applications have been pending in excess of 180 days, this provision of law is significantly underutilized due to significant uncertainty concerning USCIS’s determinations regarding whether their new job is in “the same or similar occupational classification” as the job for which green card sponsorship was initially sought. The most recent Draft USCIS Policy Memorandum seeks to provide additional clarification on this point.
WHO THIS IMPACTS
Foreign national employees who have been sponsored for a green card by their employer and whose AOS Applications have been filed and pending for 180 days or more. It is overwhelmingly Indian and Chinese born foreign nationals in the EB-2 and EB-3 preference categories who rely upon AC21 portability in light of the significant fluctuation in visa availability for those preference categories. Such fluctuations frequently result in a situation where foreign nationals file their AOS Applications and their priority date subsequently retrogresses meaning that their applications remain pending and unadjudicated until their priority dates again become current, which, in many cases, takes several years.
WHAT YOU NEED TO KNOW
The Draft Memo seeks to address the uncertainty surrounding AC21 portability by providing additional guidance for determining whether two jobs are in the same or similar occupational classification(s). The memo makes clear that the heart of the analysis is still whether the same skills, experience, and education may be required to perform both jobs, but points to factors it will look to in making this determination, which include:
1. Use of DOL SOC Codes in Determining “Same” or “Similar” Occupational Classification
The Draft Memo states that USCIS adjudicators may look to the Department of Labor’s (“DOL”) Standard Occupational Classification (“SOC”) system when analyzing whether 2 jobs are in the “same” or “similar” occupational classification and provides guidance on how the SOC codes can be analyzed and compared to determine whether a new job qualifies for AC21 portability.
The Same Occupational Classification
In order to show that two jobs are in the same occupational classification the applicant can demonstrate that the detailed, six-digit, SOC code for the original and new positions are the same (meaning all 6 digits match). While this alone is not conclusive evidence that the applicant is eligible for AC21 portability, a matching SOC code is strong evidence that both positions involve the same duties, experience, and educational backgrounds.
Similar Occupational Classifications
Individuals can also demonstrate that the original and new positions are in similar occupational classifications if they can show that, although the jobs have two distinct detailed occupational codes, these codes are within the same broad occupation code. For example, the Draft Memo explained that Computer Programmers (15-1131); Software Developers, Applications (15-1132); Software Developers, Systems Software (15-1133); and Web Developers (15-1134) are found within the same broad occupational group of Software Developers and Programmers (15-1130) and, thus, may be considered similar classifications given the largely similar duties and areas of study associated with each classification.
However, the Draft Memo further clarifies that in certain instances, simply demonstrating that two jobs are described with the same broad occupational code will not be sufficient to demonstrate eligibility for AC21 portability and that such similarities will only be given weight if it is clear from the other evidence submitted that the jobs share the same duties, experience, and educational backgrounds. Therefore, USCIS still places the burden of showing that the proper SOC code has been assigned to the new position on the applicant, meaning that individuals must explain with specificity why a given SOC code is the correct SOC code for their new (and in some cases their original) position(s).
2. Supervisors, Managers, and Career Progression
The Draft Memo also explains that progressing to a separate managerial occupational classification does not prevent individuals from demonstrating that their new position is in a similar occupational classification from their original position. In determining whether such career progression is into a similar occupational classification, however, the applicant must demonstrate that, in their new role, they are primarily responsible for managing the same or similar functions of their original jobs or for managing the work of individuals whose jobs are in the same or similar occupational classification(s) as the original position.
3. Other Variations and Differences in Wages
In the Draft Memo, USCIS acknowledges that there are certain instances where SOC codes are not grouped together or the relevant positions do not reflect normal career progression. In such cases, adjudicators will review all evidence presented and make a determination based on “the totality of the circumstances” regarding whether the two jobs “share essential qualities or have marked resemblance or likeness” that would make the individual eligible to port to the new position. In making such a determination, USCIS will focus on whether the overarching duties of the two positions are similar in nature and whether the same skills, experience, and education may be required to perform both jobs.
Finally, the Draft Memo clarifies that similar wages can be a positive factor in determining whether two position are in the same or similar occupational classification(s) but, wages alone, will not be determinative. Likewise, a difference in salaries alone should not preclude adjudicators from finding that two positions are the same or similar. Factors that should be considered when assessing variances in pay include normal raises, inflation over time, promotions, differing economic sectors or geographic locations, corporate restructuring, respective size of the two employers, differences in compensation structure, and nature of the employing institution (not-for-profit, public employers, academic institutions, etc.). The Draft Memo advises that applicants should affirmatively address and explain variances in wages and provide a detailed explanation for the variance.
THINGS TO KEEP IN MIND
Although the Draft Memo clarifies a number of points often used by USCIS adjudicators when making determinations regarding eligibility for AC21 portability, in it USCIS makes clear that evidence other than the DOL SOC codes will still be considered and assessed when determining eligibility to port under AC21 and instructs adjudicators to consider “all relevant evidence” including the job duties, skills, experience, education, training, licenses or certifications required for the respective jobs; wages offered for those jobs; and any other material and credible evidence submitted by the applicant.” While this lends some additional predictability by clarifying the factors that USCIS will consider when assessing eligibility to port under AC21, the Draft Memo still leaves considerable room for USCIS adjudicators to make subjective determinations regarding an individual’s eligibility.
USCIS has issued the draft memorandum for public review and feedback and will be accepting comments on the draft through January 4, 2016.
UPDATE: USCIS issued the final version of this policy memo dated March 18, 2016 and the criteria outlined in the memo will be used for all AC21 portability determinations pending or filed with USCIS on or after March 21, 2016.