News Release from Jewell & Associates, PC – April 26, 2011 Under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), a foreign national who has an approved I-140 petition and whose Adjustment of Status application has been filed and has remained unadjudicated for 180 days or more may accept a job with a new employer, or accept a different job with the same employer, as long as the new job is in the same or a similar occupational classification as the job for which the I-140 petition was originally filed. This ability to move between the same or similar positions is referred to “portability.”
In 2005, the USCIS published a memo indicating 3 factors that an officer should consider when determining whether a new job is in “the same or similar” occupational classification: 1) the job duties for the previous and the new position; 2) the Dictionary of Occupational Titles (DOT) and/or the Standard Occupational Classification (SOC) code for each position; 3) any substantial discrepancies between the previous and the new wages. The 2005 memo specifically indicated that a difference in geographic location between the positions was not to be considered for this inquiry. The memo also indicated that a wage difference cannot be the basis for denial, though a “substantial” discrepancy may be taken into consideration to determine whether the positions are actually the same or similar.
The USCIS has recently published clarifications regarding the “same or similar” determination, updating and explaining the use of SOC codes and providing more details regarding situations that may or may not result in a substantial discrepancy in wage. The USCIS continues to rely on all 3 factors listed in the 2005 memo to make their determination of whether a position is the same or similar. The guidance stresses that these determinations are made on a case-by-case basis and that officers will view the totality of the circumstances, so no single factor will consistently be more or less important than any other factor.
The USCIS has moved away from using DOT codes and now relies on SOC codes to classify and group jobs and occupations. SOC codes consist of (in descending order) 6 digits which represent a major job group (digits 1-2), a minor job group (digit 3), a broad occupation (digits 4-5), and a detailed occupation (digit 6). The USCIS will compare the SOC codes for the prior and new position to help determine whether the occupations are the same or similar. The new USCIS guidance indicates that a match of the first 4 SOC digits is likely not enough, by itself, to result in a “same or similar” determination. The guidance stresses that there is no hard and fast rule for how many matching digits will result in a determination of a same or similar position.
Substantial Discrepancy in Wage
Though the USCIS cannot use a difference in wages to be the sole reason for determining that a new position is not the same or similar as a previous position, the USCIS may consider whether a “substantial” discrepancy indicates that the position is not similar. The USCIS specifically notes that an allowance is made for wage discrepancies due to normal raises that occur due to time passage and for different normal rates of pay in different metropolitan locations. Wage differences due to these issues are generally not considered substantial discrepancies.
© Jewell & Associates, PC 2011