In a welcome move, on March 18, 2016 U.S. Citizenship and Immigration Services (USCIS) released policy guidance for its officers to help them decide "green card portability" cases.
Under the American Competitiveness in the Twenty-First Century Act of 2000, (AC21), under certain circumstances applicants for specific types of employment-based adjustment of status, are eligible to "port" their applications if they have changed jobs. To be eligible, (1) the applicant's Form I-140 Immigrant visa petition must have been approved; (2) the applicant's Form I-485, Application to Adjust Status, on the basis of the approved I-140 petition, must have been filed and remain unadjudicated for 180 days or more; and (3) the new job must be in the same or a similar occupational classification as the job for which the I-140 petition was filed.
Requirements (1) and (2) above are quite straightforward, but in the years since AC21 was enacted, the question of what qualifies as the "same or similar occupational classification" has plagued both the filing community and the government.
The green card portability provisions were enacted in recognition of the extremely lengthy delays in approvals of green card applications that many applicants face due to annual limitations on visa numbers per country. Because of the visa quotas, it is not uncommon for many applicants, particularly those born in India or China, to have to wait 10 years or more for their green card applications to be approved. During this waiting period their lives are in limbo and their ability to progress in their careers is severely hampered.
The AC21 portability provisions were meant to alleviate this limbo situation and allow applicants some flexibility to evolve in their jobs or change employers. But the uncertainty around what jobs are the same or similar enough has had a chilling effect on the population the portability provisions were meant to help. For most applicants, a green card is the holy grail, and they and their family members are intensely invested in the process. Many applicants and their family members face constant anxiety about the lengthy process and won't do anything to jeopardize their chances of success, even if it means doing the same job even though they are qualified for something else. By the same token, employers have been frustrated by the lack of flexibility in the process and by their inability to promote an employee with a pending green card application, without starting the process again from scratch and incurring additional legal and filing fees.
Same or a Similar Occupational Classification
It is better for everyone involved, including the overburdened government agencies that handle different aspects of the green card applications, to make more robust use of the portability rules. So the clarity and flexibility provided in the March 18, 2016 Memorandum is welcome.
Among other things, this Memo clarifies for USCIS officers that they should exercise their discretion in making "same or similar" determinations. It provides guidance about the use of the Department of Labor's Standard Occupational Codes (SOC), stating that that officers may find SOC codes helpful in deciding whether two jobs are the same or similar, but importantly it stipulates that officers should look at all of the evidence and may make their determination without regard to the SOC codes. The additional factors to be considered include, but are not limited to: the job duties of the respective jobs; the skills, experience, education, training, licenses or certifications required for these jobs; the wages offered for the jobs; and any other material and credible evidence offered by the applicant.
With regard to the consideration of SOC codes, the guidance clarifies that under normal career progression, an individual whose PERM application was certified based on one code, may advance to a related occupation pertaining to a different code encompassing managers, and the difference in codes should not be an adverse factor in making the "same or similar" determination. With career advancement, the key is to prove that in the new position, the applicant is primarily responsible for managing the same or similar functions of the job for for which their PERM application was certified. Alternatively the individual can provide evidence that the prior job encompassed duties that are included in the new job, to demonstrate they are similar. Similarly, if the applicant demonstrates that the two jobs are described by two different detailed codes but both codes fall within the same broad occupational code, the officers are encouraged to treat this evidence favorably. Examples of jobs that fall within the same broad occupational code include "Computer Programmers", "Software Developers, Applications", Software Developers, Systems Software and Web Developers. All the aforementioned job titles relate to different jobs, but they fall within the broad occupational group of "Software Developers and Programmers". Keep in mind, as the Memo cautions, that just because two jobs fall within the same broad occupational code does not mean they are similar, as with "Geographers" and "Political Scientists".
Differences in wages between the old and new jobs is a factor to be considered, but is not determinative of "same or similar". There are many reasons why there could be a significant change in wages, including a corporate restructuring and the size or industry of of the new employer, moving from a for-profit to a non-profit employer, or vice versa.
The new memo is welcome because it emphasizes the application of common sense, and provides officers with needed flexibility to make these critically important determinations. No one factor is determinative. As the guidance states, the bottom line is that "if the preponderance of the evidence indicates that the two jobs share essential qualities or have a marked resemblance or likeness, the individual may be eligible to port to the new position."
One must hope USCIS officers will take seriously their responsibility to apply common sense in making these determinations and that they will keep the policy goals of AC21 portability in mind when doing so.