USCIS Issues Draft Guidance on Whether a New Job is “Same or Similar” for Portability Purposes

USCIS issued a draft policy memorandum today on the subject of “Determining Whether a New Job is in “the Same or Similar Occupational Classification” for purposes of Section 204(j) Job Portability.”

§204(j) of the Immigration and Nationality Act allows foreign workers to change employers or jobs, to a same or similar occupation, after their adjustment of status application has been pending 180 or more days. For years, there have been questions over what “same or similar” actually means.

Understandably, a foreign worker who has been waiting for years to obtain permanent residence will want to be sure in making a change in jobs or employer that the change won’t result in a denied adjustment of status application. The memo is supposed to address this concern. But does it?

Well, I think the bad news is the proposed guidance relies a bit too heavily on the Department of Labor’s (DOL) job classification system. This concerns me, as DOL often makes questionable job classifications for a position when issuing a prevailing wage determination, particularly when it comes to information technology professions.

Each year the information technology professions change, as technology evolves. Sometimes the Department of Labor has a hard time keeping up. We often see similar positions classified differently, as database administrators, software developer applications, computer programmers, web developers, and network or computer systems administrators. I worry for the client who runs into an adjudicator who decides a position is not similar, even though still within the information technology sector.

The good news is the memo explicitly addresses career progression, with perhaps the most specific guidance we’ve seen on this to date. The memo allows that a position may be a same or similar occupation, even if there is a promotion to a managerial position which would fit into the management job codes, if the subsequent position still oversees persons in the original occupation classification.

More good news is the memo includes a totality of circumstances test, and articulates a preponderance of evidence burden of proof. These could be the foundation of successful argument in cases that have been pending five or ten years, as we often see with Indian and Chinese nationals. Ten years ago there were no Iphones, Ipads, or apps. New occupation categories have been born in that time, which broadly speaking may be still be the same or similar to occupations of ten years ago.

The memo is well-intentioned. It is expressly issued to allay foreign worker and employer concerns in switching jobs or positions. With memos like this, though, there is always cause for concern in over complicating things, which I’m afraid may happen here. We shall see.